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BENCH  AND  BAE 


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TEXAS. 

BY 

JAMES  D.   LYNCH, 

Author  of  "  Heroes  of  the  South,''''  '^  Kukhtx  Tribunal,^^  "  Clock  of  Destiny," 
*' Kemper  County  Vindicated,"  "  The  Bench  and  Bar  of  Mississippi.''^ 


•Tis  not  m  mortals  to  command  success,  but 
We'll  do  more,  Sempronius,  we'll  deserve  it. 

—Addison's  Cato. 


PUBLISHED    BY    THE    AUTHOB. 


ST.  LOUIS: 
NIXON-JONES  PRINTING  CO. 

18b5. 


Entered  according  to  Act  of  Congress,  in  the  year  1885,  by 

JAMES  D.  LYNCH, 
In  tne  office  of  the  Librarian  of  Congress,  at  Washington. 


Xivon- Jones  Printing  Co.,  210  and  212  Pine  Street,  St.  Louis,  Mo. 


mi 


Invocation. 

ON   BRING   PRESENTED   WITH  A  SWAN'S  QUILL, 

Quill,  that  through  the  classic  ages 
Glided  o'er  the  polished  pages, 
Moulding  golden  gems  of  song 
Which  the  years  have  borne  along, 
Shedding  pearly  drops  of  rhyme 
All  along  the  path  of  time, 
Lighting  it  with  sparks  that  rose 
From  the  mind  in  song  and  prose, 
Long  before  the  pointed  steel 
Painted  human  woe  or  weal  — 
Come  thou  now,  0  faithful  featherl 
Bind  my  wayward  thoughts  together, 
Smooth  the  roughness  of  my  page 
In  this  harsh  and  steely  age ; 
Let  new  light  upon  it  dawn, 
And  the  music  of  the  Swan  — 
That  death-chanting  bird  that  bore  thee, 
Swell  its  soothing  strains  around  me. 
Through  my  rugged  rhythms  trill. 
Lured  by  thy  soft  charm,  O  Quill  I 
And  may  knowledge  from  thy  point 
Trickle,  and  its  streams  anoint 
My  scrubby  growth  of  word  and  thought, 
In  its  deep  mysteries  untaught  — 
Save  so  much  as  to  make  me  feel 
How  little  it  doth  yet  reveal. 
Leave  upon  my  page  some  trace 
Of  good  that  Time  can  not  erase. 
Some  thought  not  yet  to  mortals  given. 
Some  new  idea  yet  unriven 
From  the  mind,  some  gleam  of  love, 
Lighting,  lifting  man  above. 


(8) 


PKEFACE. 


Biography  is  the  anatomy  of  history.  History  tells  us  of 
man,  biogrnphy,  of  men.  But  men  do  not  know  themselves, 
and  how  can  others  know  them?  To  know  one's  self  would 
be  to  know  everything.  All  the  branches  of  knowledge 
have  their  origin  in  the  science  of  being,  and,  like  meteors, 
flash  along  its  firmament  and  lose  themselves  in  its  illim- 
itable  expanse  ;  and  for  the  mind  to  attempt  to  fathom  itself 
is  the  mad  butt  of  thought  against  the  inconceivable  —  the 
push  of  airy  nothing  against  infinity. 

jNIetaphysics,  which  the  Scotch  Highlander  defined  to  be 
"  when  a  man  dinna  know  what  another  man  says,  and  the 
other  man  dinna  know  what  himself  says,"  is  the  most  in- 
comprehensible of  all  sciences,  and  biography  is  conceded 
to  be  the  most  difficult  field  of  literature ;  for  the  reason 
that  there  are  so  many  uninterpretable  elements  in  the  com- 
position of  mind  and  character  that  no  one  but  the  Creator 
himself  knows  the  texture  and  coloring  matter  of  human 
thought  and  the  hinging  springs  of  human  action.  Yet, 
biography  is  the  most  important  of  all  studies,  and  of  all 
the  species  of  writing,  the  most  worthy  to  be  cultivated. 

History,  with  its  monotonous  compendium  of  facts,  re- 
garding national  progress,  either  in  polity  or  science, 
ceases  to  satisfy  the  curiosity  and  spirit  of  research,  which 
in  this  age  seek  the  causes  and  ao-encies  of  achievement 
rather  than  the  mere  statistics  of  event;  and  to  supply  the 
wants  of  intellectual  progress,  it  must  weave  into  the  dry 
leaves  of  fact  a  personal  impression,  and  the  varied  colors 
of  individuality. 

"Histories,"  says  Lord  Bacon,  "set  forth  rather  the 
pomp  of  business  than  its  true  and  inward  resorts.  But 
the  lives  of  eminent  men,  if  they  be  well  written,  repre- 
senting individual   achievement   in  the    various  spheres  of 

(5) 


Q  PREFACE. 

life,  in  which  actions,  both  great  and  small,  public  and 
private,  have  a  commixture,  must  necessarily  contain  a 
more  true,  natural  and  lively  representation." 

Subsidiary  to  this  universal  desire  to  know  the  means  and 
traits  of  character  by  which  individual  eminence  is  attained, 
they  furnish  incentives  to  emulation  —  examples  of  the  pos- 
sibilities of  merit,  by  which  its  qualities  can  be  ascertained 
and  measured,  and  the  calculus  of  success  eliminated;  and 
this  knowledge  is  a  debt  which  every  person  who  has  attained 
eminence  owes  to  his  fellow-man.  All  biographies  should 
be  written  that  can  impress  the  rising  and  future  genera- 
tions with  the  rewards  of  merit  and  the  value  of  exertion, 
and  which  shed  light  upon  the  path  of  effort.  But  none 
should  be  written  which  do  not  make  us  think  better  of 
their  subjects  than  before,  and  the  sentiment  nil  de  mortuis 
nisi  honum,  is  applicable  to  the  living  as  well  as  to  the 
dead. 

The  author  has  been  engaged  nearly  one  year  in  the  pre- 
paration of  this  work,  but  several  months  of  that  time  were 
devoted  chiefly  to  procuring  sufficient  encouragement  to 
justify  the  undertaking  ;  and  if  Plutarch  deemed  it  neces- 
sary to  reside  forty  years  at  Eome  in  order  to  prepare  him- 
self to  write  the  lives  of  its  eminent  citizens,  surely  the 
author  can  claim,  under  cover  of  the  disparity  of  circum- 
stances, immunity  from  any  severe  animadversion  upon  his 
shortcomings. 

The  object  of  this  work  is  to  present  to  the  world,  and 
especially  to  the  rising  and  future  generations  of  Texas,  a 
history  of  the  eminent  judges  and  lawyers  who  have  built 
up  and  elevated  the  jurisprudence  of  the  State;  to  preserve 
their  memories  and  characters,  to  set  forth  the  methods  and 
measures  of  their  success  as  examples  and  incentives  to 
those  who  are  to  follow  in  their  footsteps,  and  to  show  them 
how  much  can  be  achieved  by  energy,  uprightness  and 
skill. 

In  selecting  his  subjects  the  author  has  occupied  neutral 
ground.  He  has  had  no  prejudices  to  subserve,  no  prefer- 
ences to  promote,  and  no  ties  of  obligation  to  draw  him  from 
the  path  of  his  own  judgment.      He  has  stood  as  Lord  Coke 


PREFACE.  7 

says  a  juror  should  stand  "  as  indifferent  as  he  stands  un- 
sworn." He  has  had  no  partiality  for  political  distinction; 
for  that  is  sometimes  the  least  exemplary  of  all  prominence  ; 
nor  have  those  selected  for  subjects  had  any  agency  what- 
ever in  the  matter.  The  selections  were  carefully  made  by 
the  author,  without  constraint  or  influence,  in  conformity 
with  the  design  of  the  work.  He  has  been  guided  chiefly 
by  the  beams  of  eminence  which  flash  from  the  judicial 
records  of  the  State. 

It  is  true  that  persons  in  Texas,  as  elsewhere,  have  held 
high  positions,  who  never  ought  to  have  held  them;  for 
the  reason  that  they  possessed  no  qualifications  which  en- 
titled them  to  such  superficial  marks  of  distinction  over 
many  others,  often  superior  to  them  in  merit,  but  less  fer- 
tile in  the  methods  of  obtaining  preferment.  With  such 
the  author  has  no  concern  ;  nor  does  this  work  profess  to 
make  mention  of  every  good  judge  and  skillful  lawyer.  The 
Texas  bar  will  bear  favorable  comparison  with  any  in  the 
Union  ;  and  there  have  been,  and  are  now,  many  gentlemen 
in  the  State,  whose  professional  qualities  and  characters  are 
full  worthy  of  the  most  meritorious  mention  in  any  work; 
but  it  has  been  the  design  of  the  author  to  embrace  in  this 
volume  only  those  whose  professional  careers  have  been 
characterized  by  an  established  eminence,  achieved  by  long 
and  successful  practice,  and  which  have  made  marked  im- 
pression upon  Texas  jurisprudence,  and  if  any  of  these 
have  been  omitted  it  is  not  the  author's  fault.  Coming  to 
Texas  an  entire  stranger,  with  no  acquaintance  with  its 
jurisprudence,  or  with  the  customs  of  the  country,  the 
author  undertook  a  diflScult  task  ;  but  he  has  been  constantly 
encouraged  by  the  most  polished  courtesy  and  kindness  on 
the  part  of  all  with  whom  he  has  come  in  contact ;  and 
to  that  kind-hearted  and  magnanimous  gentleman,  Maj.  J. 
T.  Brackenridge,  of  the  First  National  Bank  of  Austin,  he 
is  particularly  indebted  for  financial  favors  which  greatly 
aided  him  in  the  preparation  of  the  work. 

In  the  execution  of  his  task  he  has  found  it  difficult  in 
many  instances  to  obtain  the  data  necessary  to  enable  him 
to  accomplish  the  object  of  the  work,  and  the  metaphysical 


8  PREFACE. 

poverty  of  language  has  often  occasioned  him  perplexity  in 
finding  terms  to  express  the  multifarious  features  and  varied 
shades  of  character.  He  would  have  included  other  de- 
ceased lawyers  of  the  Republic  and  State,  could  he  have 
obtained  sufficient  information  in  regard  to  them.  But  the 
corroding  finger  of  time  has  already  dimmed  the  records  of 
their  greatness  and  stilled  the  hearts  upon  whose  tablets 
their  virtues  were  inscribed,  leaving  only,  here  and  there, 
a  glimmer  of  those  lights  whose  brilliancy  kindled  the  rising 
glory  of  the  State. 

With  these  inscriptions  he  feathers  its  wings  and  commits 
it  to  the  flight  of  its  destiny,  and  if  it  should  return  with 
the  olive  branch  of  favor,  the  author  will  be  glad;  but  if  it 
should  be  lost  in  the  crypts  of  wasted  eflbrt,  he  will  still 
be  contented  with  the  memorial  of  its  conscientious 
mission.  James  D.  Lynch. 


CONTENTS. 


CHAPTER    I. 

INTRODUCTION. 

PAGE. 

Genius  —  Its  source  —  Its  universal  application  — The  certainty  of 
its  assertion  —  The  law,  its  peculiar  sphere  —  Fame  the  meed  of 
genius  —  The  common  law  a  prolihc  school  of  fame  .        ,        .  13-18 

CHAPTER     II. 

A  view  of  the  laws  and  institutions  of  the  Mexican  State  of  Coa- 
huila  and  Texas —1824-1835 19-i.'5 

CHAPTER    III. 

Origin  of  Texas  jurisprudence — The  judicial  ordinances  of  the 
Consultation  and  Provisional  Government — The  judiciary  system 
of  the  Texan  Republic  —  Introduction  of  the  common  law  and  the 
civil  code  of  Louisiana  —  Observations — Legislative  modifica- 
tions— 1835-1845 26-33 

CHAPTER     IV. 

Organization  of  the  State  government  —  Its  judiciary  establish- 
ment—  Its  blended  system  of  jurisprudence — Common  law, 
civil  law,  and  equity  —  Peculiarity  of  its  land  laws  —  Marital 
rights  —  Rules  of  inheritance  —  Homestead  and  exemption 
laws  —  Its  liberal  educational  system  —  Beneficence  of  Texas 
jurisprudence  —  1845-1885 34-62 

CHAPTER    V. 

The  bench  of  the  Republic  and  State  —  Eminent  jurists,  deceased: 
James  T.  Collinsworth  —  Thomas  J.Rusk  —  John  Hemphill  — 
Anderson  Hutchinson —Richard  Morris  —  Wm.  B.Ochiltree  — 
Abner  S.Lipscomb  —  Royal  T.  Wheeler  —  Geoi-ge  F.Moore  — 
.\.  J.Hamilton  —  Lemuel  D.  Evans  —  Peter  W.  Gray  —  M.  H. 
Bonner  —  S.  P.Donley  —  Thomas  H.  Duval — Amos  Morrill  — 
M.D.Ector  —  C.  M.  Winkler —  Benjamin  C.  Franklin  —  Rich- 
ardson A.  Scurry —William  S.  Todd    63-184 

(9) 


10  CONTENTS. 

* 

CHAPTER    VI. 

PAGE. 

The  bar  of  the  Republic  and  State  —  Eminent  lawyers,  deceased : 
J.  Pinckney  Henderson  —  R.  M.  Williamson  —  Wm.  H.  Jack  — 
James  Webb  —  Ebenezer  Allen  —  James  Willie  —  O.  C.  Hartley  — 
Thomas  H.Jennings  —  John  A.  Wharton  —  James  W.  Dallam  — 
Elisha  M.  Pease  —  Wm.  S.  Oldham  —  H.  P.  Brewster  —Thomas 
M.  Jack 185-272 

CHAPTER    VII. 

The  State  bench  —  Eminent  living  judges:  Oran  M.  Roberts  — 
Richard  Coke  —James  H.  Bell  —  Asa  H.  Willie  —  Thomas  J.  De- 
vine —  John  Ireland — Robert  S.  Gould  —  John  W.  Stayton  — 
Charles  S.  West  —  Richard  S.  Walker —  John  P.  White  —  Samuel 
A.  Willson  —  James  M.  Hurt  — A.  S.  Walker —  George  Clark  — 
A.  T.  Watts— W.  S.Delaney  —  E.  B.Turner     .         .         .         .273-366 

CHAPTER    VIII. 

The  State  bar  —  Eminent  living  lawyers :  John  W.  Harris  — James 
E.  Sheppard  —  Frank  Sexton  — John  H.  Reagan  —  W.  P.  Ballin- 
ger  —  J.  W.  Throckmorton  —  John  Hancock  —  John  Sayles  — 
N.  G.  Shelly  — Richard  B.  Hubbard  —  Thomas  N.  Waul  — A.  J. 
Peeler  — Jacob  Waelder — Wm.  M.  Walton  —  A.  W.  Terrell  — 
George  Goldthwaite — N.  W.  Battle  —  M.  D.  Herring  —  Charles 
Stewart  —  Alexander  White  —  J.  M.  Anderson  —  Thomas  Harri- 
son—W.  S.  Herndon     367-532 

CHAPTER    IX. 

Legislative  data  —  The  constitution  of  Coahuila  and  Texas  —  The 
Texas  declaration  of  independence — Constitution  of  the  Texan 
Republic  —  Articles  of  annexation 533-605 

CHAPTER    X. 
Judicial  data 606-608 


LIST    OF  ILLUSTKATIOI^S. 


FACES  PAGE 

M.  H.  Bonner,  portrait  of 116 

E.  M.  Pease,  portrait  of 221 

Amos  Morrill,  portrait  of 151 

John  Ireland,  portrait  of 306 

J.  W.  Harris,  portrait  of 367 

T.  N.  Waul,  portrait  of 404 

N.  W.  Battle,  portrait  of 505 

M.  D.  Herring,  portrait  of 510 


(11) 


THE  BENCH  AND  BAR  OF  TEXAS- 


CHAPTER    I. 


INTRODUCTION. 

GENIUS  —  ITS  SOURCE— ITS  UNIVERSAL  APPLICATION -^  ITS  VARIED  MANI- 
FESTATIONS —  THE  CERTAINTY  OF  ITS  ASSERTION  —  THE  LAW  IT8 
PECULIAR  SPHERE  —  FAME  THE  MEED  OF  GENIUS  —  THE  COMMON  LAW 
A  PROLIFIC  SCHOOL   OF  FAME. 

The  definition  of  that  intuitive  principle  or  subtle  quality 
of  the  mind,  which  we  call  genius,  has  never  yet  been 
formulated ;  at  least,  it  has  never  received  an  intelligent 
interpretation  among  men.  Its  source  lies  concealed  in  the 
unexplored  recesses  of  human  nature;  nor  is  its  presence 
known  until,  awakened  by  the  touch  of  opportunity,  it 
bursts  from  its  gyves,  and  flashes  upon  the  world  with  a  light 
that  illuminates  the  extending  scope  of  its  own  vision. 

But  whatever  may  be  the  abstract  nature  of  genius,  its 
qualities  are  readily  recognized  and  its  manifestations 
easily  judged.  Its  course  is  upward  and  onward,  and  its 
flio-ht  is  bounded  bv  no  definable  horizon,  while  its  zenith 
is  hidden  somewhere  in  the  realms  of  eternal  and  untar- 
nished light. 

The  application  of  genius  is  universal,  and  it  has  kindled 
its  beacons  along  the  highway  of  every  sphere  of  life, 
penetrated  the  occult  depths  and  obscure  labyrinths  of 
every  science,  and  illumined  a  path  for  the  advancement  of 
every  art.  It  is,  indeed,  the  assignable  coeflicient  of  all 
enterprise  and  the  multiplicative  exponent  of  all  ])rogress. 

Nor  is  genius  to  be  measured  by  its  means  of  appliance. 
It  perhaps  required  as  much  genius  in  Adam  and  Eve  to 

(13) 


14  BENCH  AND  BAR  OF  TEXAS. 

patch  their  fig-leaf  aprons  as  in  the  manufacture  of  the 
finest  fabric  of  modern  art,  and  as  much  in  Noah  to  fit  the 
timbers  of  the  ark  as  in  the  construction  of  the  proudest 
vessel  that  plows  the  waves  of  the  western  world.  But 
from  the  summit  of  Ararat  it  winged  its  way  with  new- 
fledged  pinions  until  it  rested  in  triumph  upon  the  pinnacle 
of  Solomon's  Temple,  whence  it  gave  sanctified  utterance 
to  the  tongue  of  prophecy,  and  guided  the  pen  of  inspira- 
tion along  the  pages  of  Holy  Writ.  Yet,  while  the  hand 
of  genius  was  hewing  and  fashioning  the  pines  of  Lebanon 
into  the  columns  of  the  great  temple,  with  uplifted  eyes  it 
gazed  into  the  starry  canopy  of  heaven,  caught  the  first 
glimpse  of  the  star  of  Christianity,  and,  like  a  sentinel  on 
the  watch-tower,  heralded  every  gleam  of  knowledge  that 
flashed  across  its  vision;  and  thence,  with  increased  glow, 
it  illuminated  the  pages  of  Grecian  and  Roman  literature, 
and  evoked  those  sparkling  gems  of  thought  whose  corrus- 
cations  will  dazzle  the  eyes  of  the  intellectual  world  to  the 
end  of  remotest  time. 

But  in  conformity  with  the  vicissitudes  of  all  human 
grandeur,  the  eyes  of  genius  were  at  length  closed  by  the 
cold  finger  of  Fate;  and,  hurled  by  the  hand  of  barbarism 
from  the  Tarpeian  rock,  it  lay  for  ages  hidden  beneath  the 
wreck  and  ruins  of  the  Roman  Emj)ire ;  yet  the  spark 
glowed  on  until  it  slowly  arose  from  the  smouldering  ashes, 
burst  through  the  pall  of  the  dark  ages,  and  rekindled  its 
blaze  in  the  revival  of  learning. 

Yet,  while  the  true  course  of  genius  is  upward,  it  is  not 
alwavs  subordinated  to  the  good  of  mankind,  but  is  often 
perverted  and  prostituted  to  unhallowed  purposes  by  the 
wayward  passions  that  flourish  in  its  train.  While  with 
pious  sweat  it  could  carve  the  lofty  architraves  and  rear  the 
temple  of  Jehovah,  it  could  Avith  sacreligious  hand  heave 
the  huge  rocks,  and  pile  them  upon  the  Tower  of  Babel, 
with  mad  desire  to  invade  the  very  chambers  of  the  Al- 
mighty. While  it  strung  the  pastoral  lyre  and  tuned  the 
shepherd's  reed,  it  gave  power  to  the  destructive  engines  of 
Archimedes,  and  the  fatal  twang  to  the  archer's  bow  ;  and 
though  it  glowed  in  the  natural  laws    of   Kepler  and  the 


INTRODUCTION.  15 

civil  code  of  Justinian,  flashed  through  the  glasses  of 
Galileo,  and  illuminated  the  hallowed  visions  of  Luther,  it 
also  glittered  in  the  crown  of  Alexander,  burnished  the 
helmet  of  Cjesar,  and  flamed  in  the  sword  of  Bonaparte. 

But  whatever  may  be  its  mode  of  indication ;  whether  it 
sparkles  in  the  eye  of  the  astronomer,  smiles  upon  the  lips 
of  the  minstrel,  frowns  upon  the  brow  of  the  misanthrope, 
decks  the  finger  of  the  artisan,  or  emblazons  the  sword  of 
the  conqueror,  the  characteristics  of  genius  are  the  same. 
It  is  only  the  purposes  to  which  it  is  devoted,  the  motives 
by  which  it  is  guided,  and  the  brilliancy  of  its  manifesta- 
tions, that  give  to  it  any  variety  of  character;  and  these 
are  as  varied  as  the  channels  of  human  thought,  the  fires 
of  human  passions,  and  the  spheres  of  human  action.  It 
is  the  same  principle  that  gives  inspiration  to  the  poet, 
conception  of  beauty  to  the  artist,  brilliancy  of  argument  to 
the  advocate,  a  lucid  discernment  to  the  judge,  religious 
fervor  to  the  devotee,  and  ingenuity  to  the  midnight  bur- 
glar and  the  common  swindler.  But  in  whatever  direction 
its  prowess  may  be  exerted,  its  qualities  are  soon  mani- 
fested . 

A  man  of  genius  is  sure  to  assert  his  superiority  in 
whatever  walk  of  life  he  may  direct  his  course,  and  whether 
it  be  for  the  good,  or  to  the  detriment  of  society,  depends 
upon  the  passions  by  which  it  is  actuated.  "  Such  men," 
says  Lord  Bolingbroke,  speaking  of  superior  spirits  in 
elevated  positions,  "  either  appear  like  ministers  of  divine 
vengeance,  and  their  course  through  the  world  is  marked 
by  desolation  and  oppression,  by  poverty  and  servitude ; 
or  they  are  the  guardian  angels  of  the  country  they  inhabit, 
busy  to  avert  even  the  most  distant  evil,  and  to  maintain  or 
to  procure  peace,  plenty,  and  the  greatest  of  all  human 
blessings,  liberty." 

But  however  certain  may  be  the  development  of  genius, 
its  conspicuity  is  often  governed  by  circumstances,  and 
frequently  trammeled  by  the  presence  of  other  and  incom- 
patible qualities.  Chief  among  these  is  timidity — a  lack  of 
courage  sufficient  to  command  upon  all  occasions  the  full 


16  BENCH  AND  BAR  OF  TEXAS. 

and  clear  exercise  of  the  faculties,  and  to  lay  hold  with 
proper  alacrity  and  vigor  upon  great  and  rare  opportu- 
nities. 

It  was  from  this  cause  that  Cicero  failed  in  his  defense  of 
Milo.  He  did  not  have  the  courage  to  display  his  usual 
and  natural  eloquence  in  the  face  of  prejudice  and  under 
the  frown  of  power;  and  Lord  Erskine,  through  his  reluc- 
tance to  encounter  Mr.  Pitt  and  Edmund  Burke,  lost  the 
great  opportunity  of  his  life  in  declining  the  defense  of 
Warren  Hastings  ;  while,  on  the  other  hand.  Lord  Brougham 
wreathed  his  brow  with  immortal  glory  by  his  bold  defense 
of  the  unfortunate  Queen  Caroline,  in  the  face  of  courtly 
clamor  and  kingly  opposition. 

Genius  is  often  marred  by  passion  and  prejudice.  If  it 
would  retain  its  lustre,  though  clothed  in  the  tinsel  of 
eloquence,  its  lips  must  be  rouged  with  the  carmine  of 
kindness  and  complacency.  The  angry  invectives  of  Achilles 
gained  him  no  sympathy,  while  the  soothing  eloquence 
of  Nestor  swayed  the  minds  of  the  Grecian  host.  It  is 
true  that  a  judicious  appeal  ad  hominem  sometimes  produces 
a  wonderful  effect,  as  in  the  first  oration  against  Catiline; 
but  the  eloquence  of  genius  rarely  distills  from  the  pale 
lips  of  anger.  The  furious  accusations  of  Tertullus  pro- 
duced no  formidable  effect;  but  we  are  told  that  when 
Paul  reasoned,  the  court  trembled;  and  Lord  Coke  greatly 
impaired  his  efficienc}^  and  injured  himself  in  the  ej^es  of 
posterity,  by  his  virulence  on  the  trial  of  Sir  Walter 
Raleigh  when  he  condescended  to  thou  him  as  a  viper  and 
traitor.^ 

Of  all  the  schools  of  science,  there  is  no  one  so  prolific  of 
the  fruits  of  genius  as  that  of  the  law.     There  is  no  sphere 


i  When  all  argument  failed  him,  Coke,  then  AttorneyGeueral,  poured 
a  torrent  of  abusive  epithets  upon  the  noble  prisoner,  and  applied  to  him 
the  term  thou:  "Thou  hast  an  English  face  and  a  Spanish  heart,  thou 
traitor;  for  I  thou  thee,  thou  viper."  A  reference  is  made  to  this  signifi- 
cation of  thou  in  Twelfth  Night,  when  Sir  Toby  Belch,  in  urging  Sir 
Andrew  Aguecheek  to  send  a  sufficiently  provocative  challenge  to  Viola, 
suggests;  "If  thou  thou^st  him  some  thrice,  it  shall  not  be  amiss." 


INTRODUCTION.  17 

in  life  whicli  presents  so  many  necessities  and  motives  for 
its  exercise,  and  sucii  a  vast  field  for  its  development,  as 
that  of  a  lawyer.  His  constant  intercourse  with  all  sorts 
and  conditions  of  men,  and  his  frequent  dealings  with  all 
the  multiplied  concerns  of  life,  render  him  familiar  with 
human  nature,  with  all  the  workings  of  the  human  heart: 
its  virtues  and  its  vices,  its  strength  and  weakness,  and  the 
varied  manifestations  of  its  passions;  and  he  necessarily 
becomes  an  expert  in  all  the  motives  and  a  detective  of  all 
the  springs  of  human  action. 

The  wide  scope  of  his  learning,  the  confidence  reposed  in 
his  honor  and  integrity,  his  tutored  conservatism,  and  usual 
freedom  from  the  virulence  of  party  and  the  malignancy  of 
faction,  constitute  for  the  upright  lawyer  a  just  claim  to  be 
a  leader  of  his  fellow-men  ;  and  when  to  this  broad  field  of 
knowledge  he  brings  the  rare  gift  of  genius,  it,  at  once, 
places  him  in  the  line  of  distinction,  and,  with  the  aid  of 
other  and  usually  concomitant  virtues,  raises  him,  sooner 
or  later,  to  a  proud  eminence  of  superiority,  and  procures 
for  him  a  just  title  to  the  fee  of  fame. 

But  while  the  bar  offers  the  most  illimitable  scope  for  its 
exercise,  it  is  the  severest  test,  and  most  precise  and  exact- 
ing of  all  the  measures  of  genius.  It  permits  no  successful 
charlatanism,  no  ephemera  of  superficiality  and  pretension, 
but  subjects  every  candidate  for  superiority,  every  claimant 
to  the  quality  of  excellence,  to  a  just  and  infallible  esti- 
mation. 

A  title  to  fame  acquired  under  the  eye  of  such  close, 
competent,  and  penetrating  scrutiny,  amid  such  exacting 
circumstances,  and  under  such  a  nice  adjustment  of  qualifi- 
cations, is  surely  of  an  exalted  character,  and  worthy  of 
the  highest  admiration  of  mankind.  Such  fame  is  not  of 
that  kind  which  Pope  would  have  us  to  believe  to  be  a 
temple  of  ice  melting  away  with  each  returning  sun;  nor  is 
it  a  mere  second  life  upon  the  breath  of  others,  or  post- 
humous inheritance  founded  upon  custom  or  arbitrary  rules 
of  descent ;  nor  does  its  tenure  depend  upon  any  uncertain 
fine.  It  is  the  most  certain  and  enduring  of  all  earthly 
possessions,   the  iilti7na  thule  of   human    attainment,    the 


18  BENCH  AND  BAR  OF  TEXAS. 

crowning  glory  of  pre-eminent  virtue,  the  meed  of  an  im- 
mortal name.     No ; 

Say  not  to  me  such  greatness  ever  dies, 
Or  Lethe's  waves  can  over  virtue  roll; 
For  glory  has  its  realms  beyond  the  skies. 
And  there  it  copies  off  its  earthly  scroll, 
There  sets  its  music  to  celestial  chime ; 
And  when  its  bright  and  proud  historic  page 
No  longer  flutters  to  the  breeze  of  time, 
Beyond  the  reach  of  man's  invidious  rage, 
Its  shafts  will  rise  where  time  knows  neither  youth  nor  age. 

The  vast  and  intricate  system  of  common-law  juris- 
prudence, with  its  comprehensive  doctrines,  its  nice  shades, 
subtle  distinctions,  and  unlimited  application,  has  been 
from  time  immemorial  a  fertile  field  of  fame.  It  is  there 
that  we  find  those  brilliant  precedents  of  eminence,  those 
illustrious  examples  of  true  greatness,  which  have  aff'orded 
marks  and  models  for  the  aspiration  of  every  country,  and 
of  every  age  since  the  days  of  Runnymede. 

It  is  there  that  ambition  may  revel  among  the  most  gor- 
geous pictures  of  glory  ;  where  genius  can  find  an  unlimited 
scope  for  the  exercise  of  its  utmost  powers  ;  where  freedom 
may  find  shelter  from  the  pelting  storms  of  oppression  ; 
where  the  statesman  can  gather  material  for  the  fabric  for 
the  wisest  government,  and  the  patriot  may  clothe  himself 
in  more  than  Vulcanian  armor  for  the  defense  of  the  liberty 
and  honor  of  his  country. 

It  was  in  this  field  that  Coke  and  Hardwicke,  Mansfield, 
Eldon,  and  Burke,  and  a  host  of  others  no  less  renowned, 
erected  their  monuments  of  eternal  glory.  Notwithstand- 
ing the  difficulties  of  the  way,  the  height  and  ruggedness  of 
the  ascent,  there  is  no  sphere  in  life  where  so  many  hands 
are  beckoning  from  the  lofty  eminence,  and  where  so  many 
footprints  lead  to  the  summit,  as  the  law.  Nor  are  these 
confined  to  the  steps  of  the  Inner  Temple,  or  to  England's 
soil,  but  up  the  same  pathway,  and  to  a  no  less  degree  of 
eminence,  ascended  our  Marshalls,  Storj^s,  Taneys,  Kents, 
Hemphills,  Robertses,  and  others  to  whom  it  will  be  no 
disparagement  to  add,  to  a  less  degree. 


CHAPTEK    II. 


A   VIEW   OF  THE   LAWS   AND     ADMINISTRATION   OF   JUSTICE    OF   THE   MEXI- 
CAN STATE   OP   COAHUILA  AND    TEXAS — 1824-1835. 

It  was  not  at  first  view  deemed  essential  to  the  design  of 
this  work  to  extend  its  province  and  locate  its  beginning  so 
remote  from  the  present  status  of  Texas  jurisprudence  as 
to  embrace  a  notice  of  the  Spanish-Mexican  institutions 
which  obtained  in  the  State  of  Coahuila  and  Texas,  but 
as  they  were  found  hirking  among  the  elements  of  the  judi- 
ciary system  of  the  Texas  Republic,  and  still  clinging  by 
analogy,  at  least,  to  tenures,  marital  rights  and  laws  of  in- 
heritance, it  was  thought  best  to  notice  them  so  far  as  they 
are  qualified  to  shed  light  upon  the  origin  of  Texas  juris- 
prudence. 

On  the  15th  of  August,  1824,  the  constituent  Congress 
of  the  State  of  Coahuila  and  Texas,  in  session  at  Saltillo, 
declared  itself  legally  installed  in  conformity  to  the  decrees 
relative  to  its  institution,  and  qualified  to  exercise  its  func- 
tions agreeably  to  the  constitutive  act  of  the  Mexican  Con- 
federation and  other  Federal  laws  relative  to  the  union  of 
the  two  provinces.  It  then  proceeded  to  decree  the  State 
of  Coahuilla  and  Texas  to  be  an  integral  part  of  the  Con- 
federation ;  and  to  be  free,  sovereign,  and  independent  in 
whatever  related  exclusively  to  its  internal  administration 
and  municipal  government  agreeably  to  the  constitutive 
act  and  the  Constitution  of  the  United  Mexican  States. 

The  judicial  power  of  the  new  State  was  re-vested  in  the 
same  authorities  by  which  it  was  then  exercised;  and  in 
the  administration  of  justice  they  were  required  to  be  gov- 
erned by  the  laws  then  in  force.  The  whole  scope  and 
power  of  jurisprudence  was  lodged  in  a  court  called  the 
ayuntamiento,  which  was  composed  of  the  alcaldes,  the 
sindicos    and    the    regidores,  all    of    whom   were    elected 

(19) 


20  BENCH  AND  BAR  OF  TEXAS. 

by  the  people  on  the  first  Sunday  in  December,  annually, 
and  entered  on  the  discharge  of  their  duties  on  the  follow- 
ing Sunday. 

,  The  alcalde  in  his  separate  capacity  combined  the  larger 
powers  of  our  mayors  and  justices  of  the  peace.  The  du- 
ties of  the  regidores  assimulated  to  those  of  our  aldermen, 
and  the  sindicos  corresponded  with  recorders.  These,  sit- 
ting together,  composed  the  ayuntamiento,  which  had  juris- 
diction over  the  entire  community.  They  were  required 
to  use  staffs  trimmed  with  black  tassels  as  badg-es  and  dis- 
tinctions  of  office  ;  and  every  toAvn  with  one  thousand  in- 
habitants was  entitled  to  have  one  of  these  courts,  and  this 
privilege  was  extended  to  all  new  towns  of  two  hundred 
inhabitants,  provided  that  there  was  no  ayuntamiento  al- 
ready established  within  eight  leagues. 

These  courts  being  of  popular  creation  were  not  oppressive , 
and,  possessed  of  unbounded  judicial  power  they  protected 
the  interests  of  society  until  the  introduction  of  military 
garrisons,  in  consequence  of  the  discontent  occasioned  in 
Texas  by  its  connection  with  the  trans-Rio  Grande  prov- 
ince of  Coahuila  and  its  subjection  to  the  distant  capital  at 
Monclova. 

Upon  the  abuse  of  power  by  the  ayuntamiento,  or  by 
any  of  the  judges  or  officers  of  that  court,  they  were  liable 
to  be  suspended  by  the  Governor,  with  the  advice  and  con- 
sent of  his  council,  and  he  was  required  in  that  case  to 
report  the  circumstances  to  the  constituent  Congress  ;  and 
in  order  to  facilitate  the  dispensation  of  justice  every  citizen 
when  chosen  and  having,  in  the  opinion  of  the  alcalde,  no 
legal  disqualification,  was  obliged  to  serve  as  a  colleague 
judge  in  the  inferior  courts. 

By  a  decree  of  Congress,  made  in  April,  1834,  Texas 
was  formed  into  a  separate  judicial  district  and  a  court 
established  denominated  "The  Superior  Judicial  Court  of 
Texas."  The  three  departments,  Bexar,  Brazos  and 
Nacoydoches  constituted,  respectively,  three  separate  cir- 
cuits, and  the  Superior  Court  was  composed  of  one  supe- 
rior judge,  one  secretary,  and  a  sheriff  for  each  department, 
and  in  criminal  cases  it  comprised  a  jury  and   prosecuting 


MEXICAN    STATE    OF    COAHUILA    AND    TEXAS.  21 

attorney.  This  court  held  its  sessions  every  four  months 
at  the  capitals  of  the  respective  districts  ;  and  for  the  trial 
of  civil  cases  there  was  in  every  municipality  an  inferior 
court  held  by  the  alcalde  or  justice  of  the  peace  M'ith  the 
aid  of  a  jury.  All  causes,  civil  and  criminal,  were,  with 
some  limitations,  triable  by  jury,  which  was  chosen  and 
impaneled  in  a  manner  similar  to  that  in  practice  under 
the  common  law  ;  but  it  required  the  agreement  of  only 
eight  of  the  twelve  jurors  to  form  a  verdict.  The  panel 
was  composed  of  thirty-six  persons,  from  whom  twelve 
competent  jurors  were  chosen  as  prescribed  by  the  com- 
mon law;  and  for  the  formation  of  juries  in  criminal  cases 
all  the  ayuntamientos  of  the  district  were  required  to  send 
up  every  year  to  the  ayuntamiento  located  at  the  capital  a 
list  of  all  citizens  of  their  respective  municipalities  who 
were  qualified  to  serve  as  jurors.  These  names  were  placed 
in  a  box  and  the  secretary,  in  the  presence  of  the  court, 
drew  out  a  number  which,  being  multiplied  by  the  number 
of  municipalities,  should  not  be  less  than  thirty-six,  and 
these  names  were  given  to  the  subaltern  sheriffs  who  sum- 
moned  the  persons  to  appear  at  the  capital  at  the  session  of 
the  superior  court.  These  ceremonies  were  all  conducted 
in  secret  and  the  names  of  the  persons  were  not  divulged 
until  they  were  sworn.  All  the  officers  connected  with 
the  proceedings,  as  well  as  the  persons  summoned,  were 
enjoined  to  maintain  the  strictest  silence  under  penalty  of 
the  guilt  of  falsehood. 

The  superior  judges  were  required  to  be  citizens  in  the 
exercise  of  full  rights;  to  be  lawyers  by  profession,  and 
men  of  probity  and  science.  They  were  appointed  by 
Congress  upon  the  nomination  of  the  Governor,  and  could 
not  be  removed  from  office  except  for  sufficient  cause  legally 
manifested  and  proven. 

The  alcaldes,  or  primary  judges  of  the  municipal  capitals, 
were  by  virtue  of  their  office  judges  of  inquiry  and  police, 
and  were  capable  of  the  prompt  investigation  of  crime  and 
the  apprehension  of  criminals. 

The  juries  were  judges  of  all  the  facts  In  controversy, 
and  of  the  law  in  regard  to  evidence  under  the  instruction 


22  BENCH  AND  BAR  OF  TEXAS. 

of  the  court,  but  they  were  not  obliged  to  conform  their 
opinion  to  his  views  as  to  its  weight  and  import;  as  to  all 
other  questions  of  law  they  were  to  be  governed  by  his  in- 
terpretation of  their  tenor.  The  facts  established  by  the 
decision  of  the  jury  were  considered  conclusive,  and  could  ■ 
not  be  controverted  before  any  tribunal,  except  in  case  of 
corruption. 

In  all  criminal  cases  the  accused  were  allowed  to  except 
peremptorily  and  without  assignment  of  reason  to  twenty 
individuals  of  the  panel.  Objections  for  cause  were 
numerous  and  the  list  of  disqualifications  extensive.  Crim- 
inal trials  were  divided  into  three  parts,  termed  vei'bal, 
sumario  and  ■plenario.  The  verbal  method  was  employed 
for  the  correction  and  punishment  of  slight  offenses.  The 
trial  sumario  furnished  process  for  the  prompt  investigation 
of  crime,  and  for  the  discovery  and  arrest  of  the  criminal, 
and  the  trial  plenario  provided  means  for  the  final  resolu- 
tion of  the  case  and  the  application  of  the  penalty. 

All  infringements  of  police  regulations,  contempt  of 
process,  and  slight  infractions  of  law  for  which  the  penalty 
did  not  exceed  a  fine  of  ten  dollars  or  three  days'  impris- 
onment were  punished  by  verbal  determination  of  the  judge. 

By  the  trial  sumario  the  nature  of  a  crime  was  ascer- 
tained and  decided,  the  author  discovered  and  arrested  and 
sent,  together  with  all  the  circLwiistances  in  writing,  to  the 
alcalde  of  the  capital  of  the  district;  and  from  him  an  ap- 
peal lay  to  the.  Superior  Court,  which  subjected  the  appel- 
lant to  the  trial  criminal  plenario.  In  this  court  the  case 
was  tried  de  novo,  and  the  accused  could  obtain  process  to 
bring  in  all  his  witnesses.  He  was  furnished  with  a  copy  of 
the  accusation  sent  up  from  the  lower  court,  and  with  a  list 
of  the  witnesses  who  would  be  summoned  on  the  part  of 
the  State.  He  was  permitted  to  be  confronted  by  them,, 
and,  by  his  copious  right  of  exception,  participated  in  the 
formation  of  the  jury. 

The  opening  of  the  sessions  of  the  Superior  Court  were 
verified  by  acts  of  punctiliious  solemnity.  All  of  the 
officers  of  the  court  and  of  the  district  were  required  to  be 
present  and  arranged  ia  a  ceremonious  manner.     The  judge 


MEXICAN    STATE    OF    COAHUILA    AND    TEXAS.  23 

opened  the  court  with  a  discourse  suitable  to  the  occasion 
and  directed  chiefly  to  the  instruction  of  the  inferior  judges 
and  other  officers  of  justice  in  regard  to  their  duties  and  ob- 
ligations; and  at  the  conclusion  of  his  admonitions  they 
retired  to  their  respective  jurisdictions,  and  the  court  pro- 
ceeded to  the  dispatch  of  criminal  causes  according  to  their 
grade  and  the  order  of  their  dates.  After  the  examination 
of  the  witnesses  both  directly  and  in  a  cross  manner,  the 
sumario  prepared  by  the  primary  judge  was  opened  and 
read,  upon  which  further  testimony  was  admissible.  This 
being  concluded,  both  parties  were  required  to  plead  ver- 
bally in  establishment  of  the  accusation  and  defense,  after 
which  the  jury  retired  for  deliberation.  The  verdict 
agreed  upon  by  two-thirds  of  the  jurors  was  reduced  to 
writing,  with  all  the  reasons  and  circumstances  which  con- 
duced to  the  conclusion,  and  the  minority  were  permitted 
to  express  their  separate  dissent  in  like  manner. 

From  the  final  sentence  pronounced  in  the  trial  criminal 
plenario  the  only  recourse  for  relief  was  the  appeal  of 
nullity.  This  appeal  was  required  to  be  made  within  eight 
days,  upon  which  the  court  transmitted  a  copy  of  its  pro- 
ceedings to  the  Supreme  Court  of  the  State,  which  confined 
itself  to  the  review  of  the  trial  in  the  lower  court.  This 
appeal  could  be  sustained  by  proof  of  the  bribery  of  a 
juror,  or  other  gross  misconduct,  or  by  a  misapplication 
of  the  law  to  the  facts  established  by  the  jury,  and  in  the 
latter  case  the  proper  sentence  was  passed  in  the  appellate 
court. 

In  all  civil  demands  and  claims  for  personal  injuries  the 
alcaldes  were  required  to  act  as  conciliators,  and  if  possible 
to  effect  a  settlement  of  the  matter  by  arbitration ;  and  in 
all  written  petitions,  in  the  institution  of  actions,  the  plain- 
tiffs were  required  to  certify  that  they  had  attempted  in 
vain  a  reconciliation  with  the  opposite  party. 

Neither  of  the  parties  to  a  suit  was  permitted  to  present 
but  two  written  promotions  of  his  cause.  These  were  :  the 
petition,  answered  by  the  replica,  and  the  contestation,  par- 
ried by  the  duplica.  The  proceedings  in  regard  to  execu- 
tions and  sales  were  similar  to  those  now  in  practice,  but 


24  BENCH  AND  BAR  OF  TEXAS. 

no  supersedeas  intervened  during  an  appeal  to  the  trial  civil 
2)lenario  in  the  Supreme  Court  from  the  ruling  of  the  court 
below  upon  the  exceptions  taken  by  the  defendant  to  the 
sale  of  the  property  under  the  execution.  The  investiga- 
tion of  these  exceptions  was  called  the  trial  executive. 

The  proceedings  in  the  Supreme  Court  Avere  conducted 
with  the  most  dignified  solemnity,  and  the  etiquette  ob- 
served was  impressive.  The  judge  was  required  to  dress 
himself  in  black,  or  dark  blue,  and  wear  a  white  sash  with 
gold  tassels.  However  superlluous  and  absurd  these  for- 
malities may  appear  in  this  age  of  reason  and  practicability, 
it  must  be  remembered  that  among  a  people  like  the  Coa- 
huiltexians,  little  inured  to  any  fixed  and  regular  restraint, 
fanaticised  by  their  religion,  and  often  beyond  the  reach  of 
justice  in  the  vast  regions  they  inhabited,  respect  and  obe- 
dience are  largely  attracted  by  a  display  of  power  and  the 
glitter  of  appearance.  By  the  Constitution  adopted  in 
1827  this  system  was  planted  in  the  organic  law. 

The  land  commissioner,  an  officer  appointed  by  the 
Governor,  under  the  colonization  laws  of  Coahuila  and 
Texas,  was  a  functionary  possessing  important  powers.  He 
was  required  to  examine  scrupulously  the  certificates  of 
qualification  for  citizenship  which  all  emigrants  were  re- 
quired to  bring  from  the  authorities  of  the  place  from 
whence  they  came,  to  prove  that  they  entertained  the 
Christian  faith  and  were  of  good  moral  character,  without 
which  requisites  they  could  not  be  admitted  to  citizenship 
in  the  colony.  He  administered  to  them  the  oath  of  alle- 
giance, issued  titles  in  the  name  of  the  State  to  the  lands 
which  every  qualified  settler  was  entitled  to  receive  from 
the  government,  caused  all  such  lands  to  be  surveyed  and 
established  by  proper  metes  and  bounds,  taking  care  that 
there  should  be  no  conflict  of  titles.  He  laid  out  new 
towns,  organized  new  alcalde  districts,  established  ferries, 
presided  at  the  election  of  the  judges  and  other  oflScers  of 
the  courts  of  ayuntamiento,  inducted  the  new  officers,  and 
in  conjunction  with  the  impressario,  or  contractor  of  emi- 
gration, exercised  a  general  supervision  over  the  affairs  of 
the  colonies.        The   lands    orranted   bv  the   commissioner 


MEXICAN    STATE    OF    COAHUILA    AND    TEXAS.  25 

were  held  under  a  contingent  title,  which  could  only  be 
perfected  by  putting  them  in  cultivation  within  the  space  of 
six  years  ;  and  lands  thus  acquired  could  not  be  alienated 
by  the  original  settler  until  his  title  was  made  perfect. 
The  alienation  of  those  obtained  by  purchase  from  the 
government  was  coupled  with  the  condition  that  the  suc- 
cessor should  cultivate  them  within  the  period  obligatory 
upon  the  original  proprietor,  and  any  occupant  could  devise 
his  possession  conditioned  upon  the  fulfillment  of  his 
obligations  by  the  heir. 

Lands  acquired  by  virtue  of  this  law  could  not  under 
any  circumstances  be  transferred  in  mortmain  or  entail, 
and  the  general  rules  of  inheritance  were  applied  in  all 
cases  of  intestacy.  All  public  grants  made  to  heads  of 
families,  whether  to  the  husband  or  wife,  constituted  a 
community  of  interest  between  them,  and  inured  equally 
to  the  benefit  of  both,  and  this  jointure  was  maintained  as 
to  all  property  acquired  during  coverture,  whether  by 
purchase,  by  public  grant,  or  by  inheritance,  if  from  a 
child  or  any  person  of  equal  degree  of  consanguinity  to 
both. 

These  qualifications  of  public  grants,  the  rules  regulating 
marital  rights,  and  descent  and  distribution,  descended  to 
the  Texas  Republic  and  were  modified  only  by  the  gradual 
introduction  and  amalgamation  of  the  common  law  in  its 
system  of  jurisprudence. 


CHAPTER    III. 


ORIGIN  OP  TEXAS  JURISPRUDENCE  —  THE  JUDICIAL  ORDINANCES  OF  THE 
CONSULTATION  AND  PROVISIONAL  GOVERNMENT  —  THE  JUDICIARY 
SYSTEM  OF  THE  TEXAS  REPUBLIC  —  INTRODUCTION  OF  THE  COMMON 
LAW  AND  THE  CIVIL  CODE  OF  LOUISIANA  —  OBSERVATIONS  —  LEGISLA- 
TIVE MODIFICATIONS  —  1835-1845. 

The  first  system  of  jurisprudence  organized  in  Independ- 
ent Texas  was  derived  in  part  from  the  same  Spanish 
source  as  that  which  had  hitherto  existed.  The  Texas 
legislators  recognizing  the  increasing  demands  of  society 
for  a  more  cultured  and  efiScient  system  of  judicature  than 
that  which  existed  in  the  old  Mexican  State,  sought  for  a 
higher  standard  and  a  more  perfect  model  as  a  basis  for  the 
jurisprudence  of  the  New  Republic,  and  turned  their  atten- 
tion in  the  direction  most  accessible  to  their  purpose. 

The  Civil  Code  of  Louisiana  had  been  greatly  improved 
by  statutory  enactments,  and  by  the  laws  of  the  Spanish 
Partidas  compiled  in  imitation  of  the  Pandects,  but  which 
were  proclaimed  by  the  most  learned  civilians  to  be  far 
superior  to  the  general  rules  and  abstract  maxims  of  the 
Roman  Code.  Indeed  the  pliancy  and  practicability  which 
they  inspired  into  the  body  of  the  civil  law  were  claimed 
to  be  as  great  an  improvement  upon  that  system  as  that 
which  the  commentaries  of  Littleton,  Blackstone  and  Coke 
produced  upon  the  common  law  of  England.  The  Legisla- 
ture of  Louisiana  caused  a  portion  of  these  laws  to  be 
translated  in  1819,  and  introduced  them  as  far  as  they  were 
applicable  into  the  jurisprudence  of  that  State. 

This  improved  system  was  likewise  adopted  in  part  by 
an  ordinance  of  the  Provisional  Government  of  Texas  in 
1835,  which  ordained  that  the  "  Civil  Code"  and  "  Civil 
Practice"  of  Louisiana  should  be  the  rule  in  all  cases  of 
sequestration,  attachment,  or  arrest,  and  should  regulate 
these  writs  in  form  and  effect.     The  same  ordinance  also 

(26) 


ORIGIN    OF    TEXAS    JURISPRUDENCE.  27 

decreed  that  in  all  criminal  cases  and  writs  of  habeas 
corpus  the  proceedings  should  be  regulated  and  conducted 
under  the  rules  and  upon  the  principles  of  the  common  law 
of  England.  All  trials  were  required  to  be  by  jury,  except 
in  cases  of  impeachment,  and  all  penalties  inflicted  were 
made  to  conform  to  those  prescribed  in  like  cases  by  the 
common  law. 

A  provisional  judiciary  was  instituted  in  each  jurisdiction 
represented,  or  which  might  thereafter  be  represented,  in 
the  House  of  Consultation,  to  consist  of  two  judges,  desig- 
nated respectively  the  first  and  second  judge,  and  the  lat- 
ter was  to  act  only  during  the  absence  or  disability  of  the 
former.  Th^se  judges  were  to  be  nominated  by  the  Coun- 
cil and  commissioned  by  the  Governor. 

Every  judge  thus  nominated  and  commissioned  was  em- 
powered with  jurisdiction  over  all  crimes  and  misde- 
meanors known  to  the  common  law  of  England.  They  had 
power  to  grafit  writs  of  habeas  corpus  under  the  rules  of 
the  common  law,  and  writs  of  sequestration,  attachment, 
or  arrest,  under  the  regulations  of  the  civil  law.  Their 
powers  extended  to  the  cognizance  of  all  matters  testamen- 
tary. Their  courts  were  repositories  for  deeds  of  convey- 
ance and  all  other  matter  of  record,  and  they  were  ex  officio 
notaries  in  their  respective  municipalities. 

All  commissions  were  made  "  In  the  name  of  the  People, 
free,  and  sovereign,"  and  every  officer  of  the  Provisional 
Government  was  required  to  take  and  subscribe  the  follow- 
ing oath  as  a  necessary  qualification  for  office:  "  I  do 
solemnly  swear  that  I  will  support  the  republican  princi- 
ples of  the  Constitution  of  Mexico  of  1824,  and  obey  the 
declarations  and  ordinances  of  the  Consultation  of  the 
chosen  delegates  of  all  Texas  in  General  Convention  as- 
sembled, and  the  ordinances  and  decrees  of  the  Provincial 
Government,  and  I  will  faithfully  perform  and  execute  the 
duties  of  my  office  agreeably  to  law,  and  to  the  best  of 
my  al)ilities;   so  help  me  God." 

This  simple,  system  obtained  but  one  year — from  No- 
vember 1835,  to  the  meeting  of  Congress  in  December 
1836  —  when  it  was  superseded  by  the  intervention  of  the 


28  BENCH  AND  BAR  OF  TEXAS. 

laws  which  were  immediately  made  in  pursuance  of  the 
Constitution.  This  instrument  greatly  enlarged  the  exist- 
ing body  of  jurisprudence.  It  vested  the  judicial  powers 
of  the  Republic  in  a  Supreme  Court  and  in  such  inferior 
courts  as  the  Congress  might,  from  time  to  time,  ordain 
and  establish.  It  divided  the  Republic  into  judicial  dis- 
tricts, which  were  to  be  not  less  than  three,  nor  to  exceed 
nine;  and  provided  for  a  judge  for  each  district.  It  gave 
these  courts  exclusive  original  jurisdiction  over  all  ques- 
tions in  admiralty  and  of  a  maritime  character,  in  all  cases 
affecting  ambassadors,  public  ministers,  or  consuls  ;  and 
in  all  capital  cases;  and  conferred  upon  them  original  juris- 
diction in  all  civil  cases  when  the  matter  in-  controversy 
amounted  to  one  hundred  dollars.  The  district  judges 
were  empowered  to  conserve  the  peace  throughout  the 
Republic.  It  fixed  the  style  of  process  to  be  "  The  Repub- 
lic of  Texas,"  and  required  all  prosecutions  to  be  conducted 
in  the  name  and  by  the  authority  of  the  Republic,  and  to 
conclude  against  its  peace  and  dignity. 

The  chief  justice  with  a  majority  of  the  district  judges, 
as  associates,  sitting  in  banc,  constituted  the  Supreme  Court 
of  the  Republic.  This  court  possessed  only  appellate 
jurisdiction,  which  was  conclusive  within  the  limits  of  the 
Republic.  It  was  to  hold  its  sessions  annually  at  such  times 
and  places  as  might  be  fixed  by  law,  and  no  judge  was  per- 
mitted to  sit  during  the  trial  of  any  case  in  which  he  had 
participated  in  the  lower  court.  The  judges  of  both  the 
Supreme  and  District  Courts  were  made  elective  by  joint 
ballot  of  the  two  Houses  of  Congress.  The  Supreme 
Court  of  the  Republic,  thus  vested  with  unlimited  appellate 
jurisdiction,  was  perhaps  the  most  comprehensive  and  inde- 
pendent tribunal  that  ever  sat  upon  the  bench  of  justice. 

The  Constitution  of  the  Repul)lic  also  required  that  a 
court  should  be  erected  in  every  county  to  be  called  the 
County  Court,  which  was  to  be  held  by  the  justices  of  the 
county,  who  were  to  be  commissioned  by  the  President  in 
such  numbers  as,  in  the  opinion  of  Congress,  the  exigencies 
of  law  and  order  might  require. 

It  ordained   that  Congress  should,  as  early  as   possible, 


ORIGIN    OF    TEXAS    JURISPRUDENCE.  29 

introduce  by  statute  the  common  law  of  England,  with 
such  modifications  as  the  circumstances  of  society,  in  their 
judgment,  might  require;  and  it  reaflSrmed  the  ordinance 
of  the  consultation,  that  in  all  criminal  cases  the  common 
law  should  be  the  rule  of  decision.  At  this  time  the  civil 
law  of  Spain  was  the  common  law  of  the  land,  and  had 
fastened  a  firm  grasp  upon  all  tenures,  upon  descent  and 
inheritance,  and  upon  all  marital  rights  ;  and  to  remedy  the 
inconveniences  and  save  the  conflicts  which  would  surely 
arise  upon  the  introduction  of  the  common  law,  it  was 
declared  in  the  schedule  that  all  laws  then  in  force  in  Texas, 
and  not  inconsistent  with  the  Constitution,  should  remain 
in  full  force  and  effect  until  they  should  be  declared  void, 
repealed,  altered,  or  expire  by  limitation. 

This  Constitution  declared  in  terms  of  exact  coincidence 
with  the  first  Constitution  of  Mississippi,  from  which  it  was 
perhaps  taken,  that  ministers  of  the  Gospel,  being,  by  their 
profession,  dedicated  to  God  and  the  care  of  souls,  ought 
not  to  be  diverted  from  the  great  duties  of  their  functions; 
and  that,  therefore,  no  minister  of  the  gospel,  or  priest  of 
any  denomination  whatever,  should  be  eligible  to  the  office 
of  the  executive  of  the  Eepublic,  nor  to  a  seat  in  either 
branch  of  the  Congress. 

This  discrimination  and  exclusion,  it  must  be  observed, 
was  ludicrously  superpolitic ;  for  it  can  not  be  conceded 
that  there  is  less  field  for  pastoral  operations,  or  less  need 
of  ministerial  services  among  congressional  and  legislative 

Do  O 

souls  than  those  of  other  communities  ;  but,  on  the  other 
hand,  human  experience  testifies  that  there  is  often  great 
need  of  their  presence  and  services  among  the  souls  of 
legislative  assemblies. 

The  Texas  Bill  of  Rights  which  formed  a  Dart  of  this  Con- 
stitution  is  such  as  could  emanate  only  from  a  free  and 
liberty-loving  people.  It  is  similar  to  that  of  Virginia  and 
other  states  which  followed  her  immortal  declarations.  It 
looked  neither  to  the  common  law  for  guidance  on  the  one 
hand,  nor  to  the  civil  law  for  light  on  the  other ;  but  it 
looked  straight  upward  to  the  zenith  of  human  liberty  and 
human  happiness. 


30  BENCH  AND  BAR  OF  TEXAS. 

Such  were  the  organic  provisions  of  the  Consultation 
and  the  Constitution  of  the  Texas  Republic,  in  reference  to 
the  judiciary.  It  has  been  observed  by  a  learned  judge  in 
phrase  apparently  trite,  yet  with  vast  depth  of  meaning, 
that  laws  should  be  understood  in  order  to  be  obeyed.  It 
may  be  said,  too,  with  equal  import  that  a  comprehension 
of  the  machinery  and  character  of  those  organized  means 
of  .obtaining  rights  and  repelling  wrongs,  which  we  call 
courts,  should  be  within  the  reach  of  everj-^  citizen.  The 
upright  man  should  understand  the  unfailing  methods  by 
which  his  rights  are  protected  or  recovered,  and  the  unjust 
should  know  the  certainty  of  the  machinery  that  will  hurl 
a  sure-footed  retribution  upon  his  track;  and  as  the  author 
has  bad  occasion  to  remark  in  another  work,  the  great 
danger  in  the  establishment  of  the  jurisprudence  of  a  new 
and  sparsely  settled  country  lies  in  the  effort  to  introduce 
complex  systems  of  older  commonwealths.  Perfect  laws 
do  not  spring  forth  from  the  fountains  of  wisdom  like 
Minerva  from  the  brain  of  Jove.  The  Confederate  States 
present,  perhaps,  the  only  instance  in  the  history  of  the 
world  of  a  nation  leaping  from  the  womb  of  time  clad  in 
the  full  panoply  of  a  perfect  government. 

The  first  Congress  of  the  Texas  Republic  assembled  in 
December,  1836,  and  proceeded  to  enact  the  requirements 
of  the  Constitution  ;  and,  by  act  of  December  20,  declared 
that  the  common  law  of  England,  as  there  practiced  and  un- 
derstood, should,  in  its  application  to  juries  and  evidence,  be 
followed  by  the  courts  of  the  Republic,  so  far  as  it  might  not 
be  inconsistent  with  that  act  or  any  other  law  of  Congress. 
On  the  20th  of  December,  it  was  enacted  that  the  penalties 
of  all  offenses  known  to  the  common  law  of  England,  as  then 
understood  and  practiced,  and  not  otherwise  provided  for 
by  the  act,  should  be  the  same  as  prescribed  by  that  law ; 
and  by  the  act  of  January,  1840,  it  was  ordained  that  the 
common  law  of  England,  so  far  as  it  was  not  inconsistent 
with  the  constitution  and  acts  of  Congress,  then  in  force, 
should,  together  with  those  acts,  be  the  rule  of  decision  in 
all  the  courts  of  the  Republic.  But  the  act  of  February, 
1840,  declared  that  the  adoption  of  the  common  law  should 


ORIGIN    OF    TEXAS    JURISPRUDENCE.  31 

not  be  construed  to  introduce  that  system  of  pleading,  but 
that  the  proceedings  in  all  civil  suits  should  be  conducted 
as  before  —  by  the  civil  law  method  of  petition  and  answer, 
involving  as  many  issues  of  law  and  fact  as  the  parties 
might  choose  to  rely  upon  ;  and  this  mixed  and  excerpted 
system  in  which  the  civil  law  governs  the  pleadings,  while 
the  common  law  furnishes  the  rule  of  decision,  still  obtains 
in  Texas  jurisprudence.  At  the  session  of  1840  it  was 
also  enacted  that  all  laws  in  force  in  the  Republic  prior  to 
the  1st  of  September,  1836,  except  the  statute  laws  then  in 
force,  and  except  the  Mexican  laws,  which  related  exclu- 
sively to  grants  and  the  colonization  of  lands  in  the  State 
of  Coahuila  and  Texas,  and  also  such  as  related  to  the 
reservation  of  islands,  lands,  salt  lakes,  licks,  salt  springs, 
mines,  and  minerals  of  every  description,  were  repealed. 
This  act,  save  in  regard  to  the  subjects  excepted,  rooted 
out  the  Spanish-Mexican  laws  from  the  country,  and  re- 
moved most  of  the  obstacles  in  the  way  of  the  adoption  of 
the  common  law,  which  now,  mingling  with  the  statutes 
which  sprang  from  the  civil  law,  created  that  beautiful 
mixture  of  the  best  features  of  both  s^^stems,  which  gives 
to  the  jurisprudence  of  Texas  a  certainty  and  swiftness  in 
the  pursuit  of  right  which  no  wrong  can  baffle. 

In  the  formation  of  the  constitutions  of  the  Provisional 
Government  and  Republic,  there  were  two  parties  in  Con- 
gress—  one  composed  of  emigrants  from  the  common-law 
States  of  the  Union,  which  favored  that  system,  and  the 
other  composed  of  native  Texans  and  emigrants  from 
Louisiana,  who  contended  for  the  civil  law.  The  system 
adopted  was  a  compromise  between  the  two,  and  this 
finall}'  rested  upon  equity  as  a  basis. 

So  averse  was  Congress  to  any  fetters  of  formality  in  the 
pursuit  and  administration  of  justice,  and  so  impressed  was 
it  with  the  civil-law  maxim  —  res  adjudicata  pro  veritate 
accipilur  —  that  soon  after  the  passage  of  the  common-law 
act  of  1840,  it  enacted  that  the  fictitious  proceedings  in  the 
action  of  ejectment  should  be  abolished,  although  it  had 
never  been  a  remedy  in  the  republic,  and  that  the  method 


32  BENCH  AND  BAR  OF  TEXAS. 

of  trying  title  should  be  by  action  of  trespass,  in  which  the 
real  names  of  the  parties  should  be  used  ;  and  in  order  to 
apprise  the  defendant  of  the  nature  of  the  suit,  the  plaintiff 
was  required  to  indorse  on  his  petition  that  the  action  v.'as 
brought  as  well  to  try  the  title  as  for  damages. 

Proceeding  with  the  organization  of  the  courts  in  com- 
pliance with  the  provisions  of  the  Constitution,  Congress,  at 
its  first  session  in  1836,  established  in  each  county  a  county 
court  with  original  and  concurrent  jurisdiction  with  the  Dis- 
trict Courts  over  all  suits  and  actions  in  which  the  amount 
in  controversy  exceeded  one  hundred  dollars,  but  forbade 
that  it  should  try  any  suit  relative  to  the  title  of  land ;  and 
from  this  court  an  appeal  lay  to  the  District  Court,  when 
the  amount  in  controversy  exceeded  two  hundred  dollars. 
In  the  organization  of  this  court  Congress  created  the  office 
of  chief  justice  of  the  county,  an  officer  not  provided  for  by 
the  Constitution,  and  enacted  that  one  of  the  justices  of 
each  county  should  be  commissioned  as  such  by  the  Presi- 
dent. The  constitutionality  of  the  office  was  held  to  be 
valid,  but  the  Supreme  Court  deprived  the  President  of  the 
power  of  appointment,  as  being  unconstitutional,  and  the 
office  was  made  elective  by  the  justices  of  the  county. 

The  chief  justices  of  the  County  Courts  were  clothed  with 
the  powers  of  probate  in  their  respective  counties,  and 
there  was  an  unlimited  appeal  from  them  in  this  capacity  to 
the  District  Courts. 

The  County  Courts  had  appellate  jurisdiction  over  all 
cases  arising  in  the  justices'  courts,  and  these  were  tried  de 
novo  without  the  intervention  of  a  jury.  Indeed,  the 
County  Courts  had  the  same  relation  to  the  counties  as  the 
Supreme  Courts  had  to  the  Republic. 

By  the  act  of  January,  1839,  that  portion  of  the  act  of 
December,  1836,  conferring  jurisdiction  upon  the  County 
Courts,  was  repealed,  and  their  original  functions  limited  to 
the  exercise  of  the  powers  of  probate,  the  conservation  of 
the  peace,  the  supervision  of  roads  and  revenues,  and  to 
notarial  matters,  and,  save  which,  all  their  former  jurisdic- 
tion was  transferred  to  the  District  Courts.     But  all  appeals 


ORIGIM    OF    TEXAS    JURISPRUDENCE.  33 

from  the  justices'  courts  were  still  made  returnable  to  the 
County  Courts,  in  which  they  were  to  be  tried  de  novo  with- 
out a  jury. 

The  act  of  December,  1840,  empowered  the  chief  justices 
of  the  County  Courts  to  grant  the  same  remedial  processes 
in  all  matters  originating  in  the  justices'  courts,  as  those 
issued  by  the  district  judges.  But  the  act  of  February, 
1844,  prohibited  the  chief  justices  of  the  county,  and  the 
associate  justices  from  holding  the  County  Courts,  severed 
the  connection  of  the  associate  justices  with  the  probate 
courts,  and  substituted  a  board  of  county  commissioners, 
consisting  of  four  members,  wiio,  with  the  chief  justice, 
composed  the  County  Court.  These  commissioners  were 
by  the  act  of  February,  1845,  made  elective  biennially  by 
the  people,  and  their  courts  confined  to  semi-annual  sessions. 

These  provisions  conclude  the  history  of  the  judiciary 
system  of  the  Republic.  It  had  laid  the  foundation  for  a 
wise  fabric  of  laws,  had  built  the  pillars  of  a  great  State, 
and  out  of  the  best  material  that  could  be  procured,  and 
was  fully  prepared  to  enter  the  rival  lists  for  national 
greatness,  and  for  a  proud  place  among  the  nations  of  the 
world.  But  lured' by  these  attractions  a  tide  of  emigration 
poured  in  from  the  States  of  the  great  neighboring  Republic, 
and  every  emigrant  formed  a  strand  in  the  cable  which  was 
eventually  to  bind  the  destinies  of  the  two  countries. 
Closer  and  firmer  was  the  tie  drawn.  Greater  and  more 
intensified  became  the  attraction;  until,  wooed  by  its 
smiling  glow,  its  kindred  light,  and  its  superior  glare,  the 
Lone  Star  ceased  its  solitary  twinkle  and  fell  into  the  great 
orb  of  the  American  Union. 
3 


CHAPTER   TV. 


ORGANIZATION  OF  THE  TEXAS  STATE  GOVERNMENT — ITS  JtJDICIARY  SYS- 
TEM —  THE  BLENDED  CHAHACTEU  OF  ITS  JURISPRUDENCE  —COMMON  LAW, 
CIVIL  LAW,  AND  EQUITY  —  ITS  CRIMINAL  CODE — PECULIARITY  OF  ITS 
LAND  LAWS  —  MARITAL  RIGHTS  —  RULES  OF  INHERITANCE  —  HOMESTEAD 
AND  EXEMPTION  LAWS  —  LIBERAL  EDUCATIONAL  SYSTEM  —  BENEFI- 
CENCE OF  TEXAS  JURISPRUDENCE.  —  1845  -  1885. 

On  the  1st  day  of  March,  1845,  a  resolution  was  adopted 
by  the  Congress  of  the  United  States  expressing  its  willing- 
ness to  receive  the  territory  comprising  the  Republic  of 
Texas  as  a  new  State  in  the  American  Union  upon  certain 
conditions,  and  authorized  the  President  to  negotiate  with 
the  Republic  upon  the  question  of  annexation.  In  reply  to 
this  overture,  the  Texan  Congress,  by  a  joint  resolution,  on 
the  23d  day  of  June,  1845,  declared  its  consent  that  the 
people  and  territory  of  the  Texas  Republic  might  be  erected 
into  a  new  State,  to  be  called  the  State  of  Texas,  and  an- 
nexed to  the  Union  upon  the  terms  offered  by  the  United 
States  Congress,  and  authorized  the  President  of  the  Re- 
public to  proclaim  an  election  of  delegates  to  a  convention 
to  be  convened  at  Austin  on  the  4th  day  of  July.  This 
convention  ordained  and  declared,  in  the  name  of  the 
people  of  the  Texas  Republic,  and  by  their  authority,  that 
it  accepted  the  proposals,  conditions  and  guaranties  offered 
by  the  United  States  Congress,  and  proceeded  to  form  a 
constitution  for  the  new  State,  which  was  adopted  on  the 
27th  of  August. 

This  (Constitution  vested  the  judicial  power  of  the  State 
in  one  Supreme  Court,  in  District  Courts,  and  in  such  in- 
ferior courts  as  the  Legislature  of  the  State  might  from 
time  to  time  ordain  and  establish,  and  authorized  such  juris- 
diction to  be  vested  in  cor])oration  courts  as  might  be 
deemed  necessary,  and  be  directed  by  law. 

C34) 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       35 

The  Supreme  Court  was  made  to  consist  of  a  chief  jus- 
tice and  two  associates,  any  two  of  whom  formed  a  quorum. 
It  was  to  have  appellate  jurisdiction  only,  which  was  to  be 
coextensive  with  the  limits  of  the  State.  The  court,  or 
any  one  of  the  judges,  was  empowered  to  gi-ant  writs  of 
habeas  cor^ms,  and,  under  regulations  prescribed  by  law,  to 
issue  writs  of  mandamus  and  all  other  writs  necessary  to 
enforce  its  jurisdiction  and  compel  a  judge  of  the  District 
Court  to  proceed  to  trial  and  judgment  in  any  cause  pend- 
ing in  his  court ;  and  the  court  was  required  to  hold  its  ses- 
sions once  every  year,  at  not  more  than  three  places  in  the 
State,  to  be  designated  by  law. 

In  criminal  cases  and  interlocutory  judgments  the  extent 
of  jurisdiction  and  the  mode  of  exercising  it  were  remitted 
to  the  regulation  of  the  Legislature  ;  and,  as  that  body 
failed  to  make  any  provision  in  the  matter,  it  was  held  that 
no  appeal  lay  in  these  cases,  and  that  they  could  be  revised 
only  by  writ  of  error.  But  it  was  decided  at  a  later  day 
that  the  right  of  appeal  flowed  from  a  higher  source  than 
statutory  enactments,  and  that  the  exceptions,  notwithstand- 
ing the  inaction  of  the  Legislature,  could  not  be  construed 
to  depend  wholly  upon  legislation,  and  thus  contravene  the 
spirit  of  the  Constitution.  The  act  of  1846  removed  the 
grounds  of  conflict,  and  provided  for  general  appeals  in 
criminal  cases,  except  on  the  part  of  the  State  ;  but  the 
code  of  criminal  procedure  subsequentl}^  gave  an  appeal 
to  the  State. 

The  judges  of  the  Supreme  and  District  Courts  were 
nominated  by  the  Governor,  and  were  appointed  by  him 
with  the  advice  and  consent  of  two-thirds  of  the  Senate, 
until  an  amendment  to  the  Constitution,  adopted  on  the 
16th  of  January,  1850,  provided  for  theii"  election  by  the 
people. 

The  Constitution  required  that  the  State  should  be 
divided  into  convenient  judicial  districts,  with  a  judge  for 
each,  who  should  reside  in  the  same,  and  should  hold  his 
courts  at  one  place  in  each  county  at  least  twice  in  every  year, 
in  such  manner  as  might  be  prescribed  by  law.  These  courts 
were  vested  with  original  jurisdiction  of  all  criminal  cases,  of 


36  BENCH  AND  BAR  OF  TEXAS. 

all  suits  in  behalf  of  the  State,  to  recover  penalties,  for- 
feitures and  escheats  ;  of  all  cases  of  divorce,  and  of  all 
suits,  complaints  and  pleas  whatever,  without  regard  to  any 
distinction  between  law  and  equity  when  the  matter  in  con- 
troversy amounted  to  one  hundred  dollars,  exclusive  of 
interest ;  and  the  district  judges  were  empowered  to  issue 
all  writs  necessary  to  enforce  their  own  jurisdiction,  and  to 
exercise  general  superintendence  and  control  over  all  in- 
ferior jurisdiction.  And  in  the  trial  of  all  criminal  cases 
in  the  District  Courts  the  jury  was  required  to  fix  the 
amount  of  punishment  to  be  inflicted,  and  to  assess  the 
fine  to  be  imposed,  except  in  capital  cases,  and  those  in 
which  the  punishment  or  fine  was  especially  designated  by 
law.  In  the  trial  of  cases  in  equity  it  was  provided  that 
either  party  should  have  the  right  of  trial  by  jury,  upon 
making  application  for  the  same  in  open  court,  and  the 
proceedings  were  in  such  cases  to  be  governed  by  the  rules 
and  regulations  prescribed  in  trials  at  law. 

The  Constitution  required  that  a  convenient  number  of 
justices  of  the  peace  should  be  elected  by  the  qualified 
voters  of  each  county,  who  should  be  commissioned  by  the 
Governor,  and  have  such  civil  and  criminal  jurisdiction  as 
might  be  conferred  by  law,  and  in  these  courts  the  right  of 
trial  by  jury  was  vouchsafed  in  all  cases  in  which  the 
penalty  was  fine  or  imprisonment  (except  in  cases  of  con- 
tempt); and  in  all  cases  an  appeal  lay  to  the  court  of  the 
district. 

It  also  provided  for  the  establishment  of  inferior  tribu- 
nals in  counties,  whose  functions  should  be,  the  appointment 
of  guardians,  granting  letters  testamentary  and  of  admin- 
istration, the  settlement  of  accounts  of  executors,  admin- 
istrators and  guardians,  and  the  transaction  of  all  business 
appertaining  to  estates ;  and  over  all  these  matters  the 
District  Courts  had  both  original  and  appellate  jurisdiction. 

In  the  formation  of  these  provisions  by  law,  the  Legisla- 
ture, by  joint  resolution  on  the  25th  of  April,  1846, 
authorized  the  attorneys  of  the  plaintiffs  or  defendants,  to 
file  in  the  Supreme  Court  a  written  brief  or  argument 
which  the  judges  were  required  to  notice  and  treat  as  an 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVEIINMENT.       37 

appearance ;  and  by  the  act  of  the  12th  of  May  the 
Supreme  Court  was  prohibited  from  reversing  on  an 
appeal  or  dismissing  any  case  for  want  of  form,  provided 
that  there  was  suflScient  matter  or  substance  contained  in 
the  record  to  enable  the  court  to  decide  the  cause  upon  its 
merits;  but  if  it  was  apparent  that  the  appeal  was  taken 
for  delay  it  should  be  dismissed  ;  and  if  the  appellant  was  the 
defendant  in  the  court  below,  ten  per  cent  on  the  amount 
claimed  should  be  added  as  damages,  in  addition  to  the 
other  costs. 

This  act  also  afforded  relief  to  any  person  who  by  acci- 
dent or  mistake  had  failed  to  file  in  proper  time  a  transcript 
of  the  proceedings  in  the  court  below,  by  providing  that  it 
might  be  filed  upon  certain  conditions,  and  the  cause  tried 
upon  its  merits  at  any  time  during  the  term  to  Avhich  the 
appeal  was  returnable,  even  after  the  judgment  of  the  lower 
court  had  been  affirmed.  The  appellee  was  not  required  to 
file  any  answer  to  the  assignment  of  errors  or  defects 
insisted  upon  by  the  appellant.  It  was  sufficient  if  he  filed 
a  brief  of  his  argument  and  the  authorities  on  which  he 
relied.  All  appeals  were  required  to  be  tried  upon  a 
statement  of  facts  agreed  upon  by  the  parties  or  their 
attorneys,  and  accompanied  by  a  certificate  of  verity  from 
the  lower  court,  or,  if  the  parties  could  not  agree  upon  the 
facts  as  certified  by  the  judge,  or  on  a  bill  of  exceptions  ; 
or  on  a  special  verdict,  or  on  an  error  of  law  either  assigned 
or  apparent  on  the  face  of  the  record.  In  the  absence 
of  all  these  grounds,  the  case  was  to  be  dismissed  upon  terms 
within  the  discretion  of  the  court.  By  the  act  of  the  30th 
of  November,  1850,  the  Supreme  Court  was  required  to 
hold  one  session  in  every  year  in  the  City  of  Austin,  one  in 
the  City  of  Galveston,  and  one  in  the  town  of  Tyler;  and 
the  court  while  sitting  at  either  of  these  places  had  power 
of  revision  over  those  appeals  only  which  came  up  from 
the  districts  assigned  to  its  jurisdiction;  but  if  any  cases 
argued  or  submitted  were  left  undecided  at  the  close  of  the 
term,  it  was  competent  for  the  court  to  decide  it  at  the 
ensuing  term,  held  at  either  of  the  above  places,  and  the 


38  BENCH  AND  BAR  OF  TEXAS. 

judgment  was  transmitted  for  record  to  the  place  where  the 
case  was  submitted. 

The  Legislature,  by  the  judiciary  act  of  184(),  authorized 
the  district  judges  to  issue  all  remedial  writs  either  in  vaca- 
tion or  during;  the  sessions  of  the  courts  without  limit  or 
qualification,  except  writs  of  mandamus,  which  could  not 
be  granted  ex  parte,  nor,  if  peremptory,  without  due  no- 
tice ;  and  they  could  be  issued  to  an  oflScer  only  in  regard 
to  duties  purely  ministerial,  and  which  did  not  require  the 
exercise  of  judgment  and  discretion.  In  addition  to  an  un- 
limited original  jurisdiction  in  all  civil  cases  in  which  the 
amount  in  controversy  amounted  to  one  hundred  dollars, 
they  were  clothed  with  all  the  powers  incident  to  courts  of 
oyer  and  terminer  and  general  jail  delivery. 

All  suits  in  the  District  Courts  were  by  this  act  to  be  begun 
by  petition,  which  should  be  without  distinction  as  to  law 
or  equity,  and  which  should  set  forth  all  the  allegations 
necessary  to  sustain  the  suit,  together  with  a  full  statement 
of  the  nature  and  measure  of  relief  desired.  The  defendant 
in  his  answer  could  plead  as  many  matters  either  of  law  or 
fact  as  he  might  deem  necessary  to  his  defense. 

The  act  of  1848,  organizing  justices'  courts  pursuant  to 
the  requirements  of  the  Constitution,  conferred  upon  them 
jurisdiction  and  power  in  civil  cases  co-extensive  in  every 
particular  with  the  District  Courts  when  the  amount  claimed 
or  the  damao;es  sought  to  be  recovered  did  not  exceed  one 
hundred  dollars  ;  but  they  could  not  determine  finally  any 
offense  if  a  deadly  weapon  was  used  or  attempted  to  be 
used.  They  could  grant  new  trials  upon  certain  conditions, 
and  were  required  to  have  all  cases  tried  by  a  jury  in  which 
more  than  ten  dollars  were  involved. 

The  act  of  1856  legalized  the  use  of  the  Spanish  lan- 
guage in  justices'  courts  in  all  counties  west  of  the  Gauda- 
lupe  River,  except  Neuces,  San  Patricio,  and  Eefugio,  when 
neither  the  justice  or  the  parties  understood  the  English 
language  ;  and  when  in  any  case  either  of  the  parties  spoke 
the  Eno-lish  lan^uao-e  alone,  of  which  the  justice  was  ignor- 
ant,  the  suit  could  be  removed  to  the  court  of  the  nearest 
justice  who  was  conversant  with  that  language. 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       39 

The  act  of  March,  1848,  organized  in  every  county  of  the 
State  a  county  court,  composed  of  one  chief  justice,  to  be 
elected  by  the  people,  and  gave  to  it  general  jurisdiction 
over  the  police  affairs  of  the  county.  These  courts  were 
empowered  to  take  probate  of  wills,  to  appoint  guardians, 
and  to  take  jurisdiction  over  all  matters  testamentary  and 
of  administration,  to  supervise  the  accounts  of  executors, 
administrators  and  guardians,  and  to  make  settlement,  par- 
tition and  distribution  of  the  estates  of  deceased  persons, 
idiots,  lunatics,  and  of  persons  non  compos  mentis,  which 
they  were  required  to  exercise  in  the  manner  prescribed  by 
law.  This  jurisdiction  superseded  the  powers  granted  to 
the  judge  of  probate  in  each  county  by  the  act  of  1846. 
It  absorbed  and  consolidated  the  former  probate  system, 
and  all  acts  conferring  conflicting  cognizance  were  re- 
pealed. 

These  courts  were  also  authorized  to  levy  and  collect  a 
tax  for  county  purposes  and  to  exercise  the  functions  of 
land  commissioners. 

In  August,  1856,  the  Legislature  created  a  court  of 
claims,  to  be  held  in  the  City  of  Austin  by  a  commissioner 
elected  by  joint  vote  of  the  two  houses,  whose  duties  were 
to  ascertain  the  legality  of  all  claims  for  money  or  land 
against  the  State.  He  was  also  to  act  as  adjutant  general, 
commissioner  of  the  general  land  office,  and  also  perform 
the  duties  of  an  auditor.  In  1858  the  duties  and  functions 
of  his  office  were  transferred  to  the  controller,  but  the 
court  was  revived  by  the  act  of  1860. 

The  Constitution  of  1866  made  but  few  changes  of  im- 
portance in  the  judiciary  system  of  the  State.  Its  amended 
features  pertained  chiefly  to  the  re-establishment  of  the 
allegiance  of  the  State  to  the  Federal  Union,  upon  the  terms 
and  conditions  prescribed  by  the  United  States  Congress. 
It  vested  the  judicial  power  in  one  supreme  court,  in  dis- 
trict courts  and  in  county  courts,  and  such  inferior  tribunals 
as  the  Legislature  might  see  proper  to  establish.  It  au- 
thorized the  oro;anization  of  criminal  courts  in  the  chief 
cities  of  the  State,  with  county  jurisdiction,  under  such 
regulations  as  might  be  prescribed    by  law  ;  and  any  judge 


40  BENCH  AND  BAR  OF  TEXAS. 

of  one  of  these  courts  might  preside  over  the  criminal 
courts  of  other  cities  as  the  Legishiture  might  direct. 

The  number  of  supreme  judges  was  increased  to  five. 
They  were  required  to  be  more  than  thirty-five  years  old  at 
the  time  of  their  election.  Their  tenure  of  office  was  fixed 
at  ten  years,  and  their  annual  salary  was  not  to  be  less  than 
four  thousand  five  hundred  dollars.  The  Supreme  Court 
was  authorized  to  ascertain,  by  affidavit  or  otherwise,  as  it 
thought  proper,  such  matters  of  fact  as  might  be  necessary 
to  the  exercise  of  its  jurisdiction. 

The  district  judges  were  to  be  elected  for  the  term  of 
eight  years,  and  should  receive  an  annual  salary  of  not  less 
than  three  thousand  five  hundred  dollars.  They  were  to 
have  original  jurisdiction  over  all  criminal  cases,  of  all  suits 
in  behalf  of  the  State,  and  of  all  suits,  complaints  or  pleas 
whatever,  without  regard  to  any  distinction  between  law 
and  equity,  when  the  matter  in  controversy  should  be  valued 
at,  or  amount  to,  one  hundred  dollars  exclusive  of  interest ; 
and  in  all  cases,  either  of  law  or  equity,  involving  matter 
to  the  amount  of  twenty  dollars,  the  right  of  trial  by  jury 
was  to  be  preserved. 

In  addition  to  the  probate  and  police  powers  of  the  ex- 
isting County  Courts  they  were  vested  with  jurisdiction  over 
all  misdemeanors  and  petty  o flenses,  as  defined  by  law,  and 
over  all  civil  cases,  without  distinction  of  law  and  equity, 
in  which  the  amount  claimed  should  not  exceed  five  hun- 
dred dollars  exclusive  of  interest,  which  was  to  be  exercised 
under  such  regulations,  limitations  and  restrictions  as  might 
be  prescribed  b}^  law. 

The  Constitution  of  1875  greatly  enlarged  and  expauded 
the  judicature  of  the  State  and  prescribed  the  establishment 
of  that  efficient,  harmonious  and  beautiful  system  which 
now  characterizes  thejurisprudence  of  Texas.  The  judicial 
power  of  the  State  is  vested  in  one  supreme  court,  in  a  court 
of  appeals,  in  district  courts,  county  courts,  commissioners' 
courts,  in  courts  of  justices  of  the  peace,  and  in  such  others 
as  may  be  established  by  law. 

The  Legislature  is  authorized  to  establish  criminal  district 
courts,. with  such  jurisdiction  as  it  may  prescribe,  provided 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       41 

that  the  district  contains  a  city  of  thirty  thousand  inhabit- 
ants, which  shall  support  the  court. 

The  number  of  Supreme  Court  judges  is  reduced  to 
three  —  one  chief  justice  and  two  associates  —  who  are 
elected  for  six  years  by  the  people,  and  their  qualifications 
are  that  they  shall  have  attained  the  age  of  thirty  years, 
shall  have  been  practicing  lawyers  at  the  bar  of  the  State, 
or  shall  have  been  judges  of  some  court  in  the  State,  or, 
both  together,  at  least  seven  years,  and  their  annual  salary 
is  limited  to  thirty-five  hundred  and  fifty  dollars  each. 

The  Supreme  Court  has  appellate  jurisdiction  only,  which 
is  co-extensive  with  the  limits  of  the  State;  but  it  extends 
only  to  civil  cases  of  which  the  District  Courts  have  orig- 
inal or  appellate  jurisdiction;  and  it  has  power  to  make 
rules  and  regulations  for  the  government  of  all  the  other 
courts  of  the  State,  and  to  regulate  their  proceedings. 

The  Court  of  Appeals  consists  of  three  judges,  any  two  of 
whom  constitute  a  quorum,  and  the  concurrence  of  two  of 
the  judges  is  necessary  to  form  a  decision.  Their  tenure 
of  office,  mode  of  election,  qualifications,  and  compensation 
are  the  same  as  those  of  the  judges  of  the  Supreme  Court. 

This  court  has  appellate  jurisdiction  co-extensive  with  the 
limits  of  State  in  all  criminal  cases,  of  whatever  grade, 
and  in  all  civil  cases  unless  otherwise  provided  by  law,  of 
which  the  County  Courts  have  original  or  appellate  juris- 
diction. This  court,  or  its  judges  individually,  may  issue 
writs  of  habeas  corpus,  and  all  other  writs,  under  regula- 
tions prescribed  by  law,  that  maybe  necessary  to  enforce  its 
own  jurisdiction  ;  and  the  court  is  required  to  hold  its  ses- 
sions during  the  same  time  and  at  the  same  places  desig- 
nated for  the  terms  of  the  Supreme  Court,  and  like  that 
court  it  may  exercise  discretional  power  as  to  the  manner 
of  ascertaining  facts  necessary  to  establish  its  jurisdiction. 

The  State  is  divided  into  twenty-six  judicial  districts,  in 
each  of  which  there  is  a  district  judge  elected  by  the  peo- 
ple for  a  term  of  four  years,  who  shall  have  attained  the 
age  of  twenty-five  years,  who  shall  have  been  a  practicing 
attorney  or  a  judge  of  some  court  in  the  State  for  the 
period  of  four  years,  and  who  shall  have  been  a  resident 


42  BENCH  AND  BAR  OF  TEXAS. 

of  the  district  for  two  years  antecedent  to   his   election. 
The  district  judges  are  required  to  hold   regular  terms  of' 
their  courts  at  one  place  in  each  county  of  their  respective 
districts  twice  in  every  year,  and  to  each  of  them  is  assigned 
an  annual  salary  of  twenty-five  hundred  dollars. 

The  District  Courts  have  original  jurisdiction  in  all  crim- 
inal cases  of  the  grade  of  felony,  and  of  all  suits,  com- 
plaints and  pleas  whatever,  without  distinction  between  law 
and  equity,  when  the  matter  claimed  or  involved  in  the 
controversy  exceeds  in  value  or  amount  the  sum  of  five 
hundred  dollars,  exclusive  of  interest ;  and  the  courts  or 
the  judges  may  issue  writs  of  habeas  corpus  in  felony  cases, 
also  the  writs  of  mandamus,  injunction,  certiorari^  and  all 
writs  necessary  to  enforce  their  jurisdiction.  These  courts 
have  appellate  jurisdiction  and  general  control  in  all  pro- 
bate matters  over  the  County  Courts,  and  original  jurisdic- 
tion and  general  control  over  executors,  administrators, 
guardians  and  minors,  under  such  regulations  as  are,  or  may 
be,  prescribed  by  law  ;  and  in  the  trial  of  all  causes  in  the 
District  Courts,  whether  founded  upon  law  or  equity,  either 
party  to  the  suit  may,  upon  conditions,  have  his  cause  sub- 
mitted to  a  jury. 

The  County  Courts  are  presided  over  by  county  judges 
elected  by  the  people  for  the  term  of  two  years.  They  are 
required  to  be  well  informed  in  the  law  of  the  State,  and 
receive  for  their  services  such  fees  and  perquisites  as  may 
be  prescribed  by  law. 

These  courts  have  original  jurisdiction  of  all  misdemean- 
ors, of  which  exclusive  jurisdiction  is  not  assigned  to  the 
justices'  courts,  and  when  the  fine  to  be  imposed  exceeds 
two  hundred  dollars;  and  they  have  exclusive  original  juris- 
diction of  all  civil  cases  involving  more  than  two  hundred 
dollars  and  not  exceedino:  five  hundred,  exclusive  of  inter- 
est.  They  have  concurrent  jurisdiction  with  the  Dis- 
trict Courts  in  all  cases  in  which  the  matter  involved-is  more 
than  five  hundred,  and  not  more  than  one  thousand  dollars; 
but  they  have  no  jurisdiction  of  suits  for  the  recovery  of 
land.  They  have  appellate  jurisdiction  in  all  cases,  civil  or 
criminal,  arising  in  the    justices'   courts,  provided  that  in 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       4i> 

civil  cases  the  iimount  of  the  iiulgment  appealed  shall  ex- 
ceed twenty  dollars,  exclusive  of  costs.  All  appeals  are 
tried  de  novo,  and  if  the  judgment  be  for  a  sum  not  ex- 
ceedino;  one  hundred  dollars  it  is  final ;  but  if  it  be  for 
more  than  one  hundred  dollars  an  appeal  lies  to  the  Court 
of  Appeals. 

These  courts  have  also  general  powers  of  probate,  and 
the  county  judges  have  power,  either  in  term  time  or  vaca- 
tion, to  issue  writs  of  habeas  corpus  and  all  other  remedial 
writs  when  their  subject-matter  or  operation  is  within  the 
jurisdiction  of  the  court.  They  are  required  to  hold  a 
term  for  civil  business  at  least  once  in  every  two  months, 
and  a  term  for  the  disposition  of  criminal  cases  once  in 
every  month;  but  they  can  dispose  of  probate  matter  either 
in  term  time  or  vacation.  All  indictments  for  misdemeanor 
found  by  the  grand  juries  in  the  District  Courts  are  to  be 
certified  to  the  County  Courts  if  the  jurisdiction  of  the  case 
resides  in  them ;  and  all  cases  in  the  County  Courts  may  be 
tried  by  a  jury  of  six  men  upon  conditions  to  be  complied 
with  by  the  party  demanding  it. 

Each  county  is  required  to  elect  four  county  commission- 
ers, who,  with  the  county  judge  as  presiding  officer,  have 
general  police  supervision  of  the  county,  and  provide  the 
required  precincts  for  the  election  and  jurisdiction  of  the 
justices  of  the  peace.  The  latter  have  jurisdiction  in  all 
criminal  matters  in  which  the  penalty  or  fine  does  not  ex- 
ceed two  hundred  dollars,  and  of  all  civil  cases  with  like 
limitation  of  the  amount  involved,  of  which  exclusive 
original  jurisdiction  is  not  given  to  the  District  or  County 
Courts. 

This  system,  which  forms  a  part  of  the  present  organic 
law  of  Texas,  not  only  furnishes  ample  and  efiicient  ma- 
chinery for  the  accomplishment  of  the  object  of  all  good 
governments  —  the  protection  of  life,  liberty  and  property  ; 
but  its  various  jurisdictions  are  so  distinctly  defined  and  so 
admirably  adjusted  that  every  relation  of  society  can  be 
readily  assigned  to  the  province  of  justice  best  adapted  to 
its  needs. 

In  view   of  the   larsre    accumulation   of  business  in   the 


44  BENCH  AND  BAR  OF  TEXAS. 

Supreme  Court  and  Court  of  Appeals,  and  to  afford  facility 
for  the  utmost  expedition  in  those  tribunals,  the  Legislature 
in  July,  1879,  established  a  commission  of  arbitration  and 
award  consisting  of  three  persons  learned  in  the  law,  and 
to  be  appointed  by  the  Governor  by  and  with  the  advice  and 
consent  of  the  Senate.  This  Court,  styled  by  the  act  "Com- 
missioners of  Appeals  of  the  State  of  Texas,"  is  required 
to  hold  its  sessions  at  the  same  times  and  places  as  the 
Supreme  Court.  It  had  power  under  the  creative  act  to 
prejudge  and  pronounce  award  upon  all  civil  cases  pending 
in  or  brought  up  to  the  Supreme  Court  or  Court  of  Appeals, 
of  which  the  parties  interested,  or  their  attorneys,  might 
give  consent  in  writing  to  the  arbitration;  and  it  was  re- 
quired to  report  its  conclusions  and  awards  to  the  court 
from  which  the  cases  were  taken  in  commission,  accom- 
panied by  a  brief  synopsis  of  the  case  and  the  facts  which 
formed  the  basis  of  its  opinion,  and  this  became  the  judg- 
ment of  the  court. 

The  acts  of  February,  1881,  and  March,  1883,  author- 
ized the  Supreme  Court  and  Court  of  Appeals  to  refer  any 
civil  cases  to  the  Commissioners  of  Appeals  without  refer- 
ence to  the  consent  of  the  parties,  and  made  it  their  duty 
to  do  so  when  necessary  to  promote  an  early  disposition  of 
cases  pending  before  them.  The  opinions  of  the  commis- 
sioners, when  adopted  by  the  court  to  which  they  are  re- 
ported, are  to  be  the  published  opinions  of  the  respective 
courts.  The  Commissioners  Courts  are  to  be  governed  by 
the  same  rules  and  regulations  that  obtain  in  the  Supreme 
Court.  They  may  issue  writs  of  certiorari  in  order  to  per- 
fect their  records,  and  they  may  punish  for  contempt.  The 
commissioners  hold  their  office  for  two  years,  and  receive 
the  same  compensation  as  the  judges  of  the  Supreme 
Courts. 

The  into'oduction  of  the  common  law  of  Eno-land  as  to 
crimes,  i3enalties,  juries,  evidence,  and  the  writ  of  habeas 
corpus;  and  the  adoption  of  the  civil  code  and  practice  of 
Louisiana  in  regard  to  successions  and  remedial  writs,  have 
already  been  mentioned  in  the  chapter  devoted  to  the 
jurisprudence    of    the    Texas    Republic.       The    character, 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       45 

growth  and  development  of  this  mixed  and  excerpted  system 
will  now  claim  attention. 

The  entire  system  of  Texas  civil  jurisprudence  is  founded 
chiefly  upon  principles  of  equity.  The  adoption  of  the 
common  law  by  the  act  of  1840  as  the  law  of  the  land,  in 
conjunction  with  the  ordinances  of  the  Consultation  and 
Provisional  Government,  and  the  acts  of  the  Texas  Con- 
gress then  in  force,  in  no  manner  disturbed  the  foundation 
upon  which  those  acts  and  ordinances  rested.  The  laws 
and  institutions  of  the  State  ot  Coahuila  and  Texas  being 
colored,  more  or  less,  by  the  tenets  and  precepts  of  the 
Catholic  religion,  and  being  written  in  a  foreign  language, 
were  distasteful  to  the  people  who  had  emigrated  from  the 
United  States,  and  formed  a  large  majority  of  the  popula- 
tion of  the  Texas  Republic.  These  laws,  except  such  as 
related  to  land  grants  and  reservations,  were,  as  has  been 
remarked,  entirely  abolished  by  the  act  of  1840;  and  such 
as  remained  unrepealed  prior  to  that  time  continued  to  be 
confined  to  their  original  scope,  and  to  bear  the  crude  stamp 
of  their  Mexican  origin.  They  formed  no  basis  for  the 
statute  laws  of  the  Republic.  It  is  true  that  an  analogy 
was  maintained  between  them,  but  only  such  as  was  neces- 
sary to  prevent  the  inconvenience  and  conflict  which  must 
always  arise  from  sudden  changes  of  law  in  regard  to 
tenures,  inheritance  and  vested  rights. 

The  Texas  legislators  being  thus  untrammeled  by  vassal- 
age to  any  system,  and  being  free  to  weigh  the  truth  of 
precedent,  and  to  judge  of  the  soundness  of  mouldy 
maxims  and  antiquated  principles,  were  guided  alone  by 
that  philosophy  which,  in  their  opinion,  formed  from  broad 
and  unbiased  views,  was  best  calculated  to  promote  the 
interest  and  welfare  of  society.  They  revised,  in  a 
measure,  both  the  common  and  the  civil  law,  and  plucked 
such  features  and  rules  of  conduct  from  each  system  as 
they  deemed  perfectly  adapted  to  the  best  regulation  of 
society,  and  to  the  most  perfect  adjustment  and  protection 
of  individual  rights. 

They  rejected  the  idea  of  separate  courts  of  chancery, 
clogged  with  their  antiquated  forms   and   ceremonies,  and 


46  BENCH  AND  BAR  OF  TEXAS. 

harnessed  the  whole  system  of  equity  to  the  simple  machin- 
ery of  law.  Yet,  strange  as  it  may  seem  to  a  lawyer  of 
the  old  school  and  orthodoxy,  its  scope  and  efficiency  are 
in  no  wise  restrained  by  the  association;  but,  while  it 
traverses  concurrently  with  law  the  entire  field  of  legal 
rule,  it  reaches  its  arms  beyond  the  scope  of  the  stricium 
jus  of  law,  and  seizes  upon  every  artifice  of  cunning  and 
deceit,  parries  the  vis  major  of  every  event  of  accident 
and  misfortune  ;  and  embraces  every  civil  right  and  civil 
wrong  which  find  cognizance  at  the  bar  of  human  reason. 
Thus  elevated  above  the  crude  and  confused  administration 
upon  principles  of  imaginary  conscience  and  supposed 
right,  which  characterized  its  subserviency  to  the  rules  of 
law,  the  equity  of  Texas  jurisprudence  sheds  a  benign 
influence  upon  every  feature  of  society,  and  opens  the  door 
of  justice  to  all  the  multiplied  concerns  of  life. 

The  act  of  1840  especially  excepted  the  application  of 
the  common-law  rules  of  pleading  to  procedure  in  the 
Texas  courts,  and  the  civil-law  methods  by  petition  and 
answer  in  the  mode  still  used  in  Texas  judicature.  The 
petition  must  set  forth  clearly,  and  in  a  logical  and  legal- 
ized form,  without  distinction  of  law  and  equity,  the  facts 
constituting  the  cause  or  action.  The  answer  must  in  like 
manner  present  the  grounds  of  defense,  and  may  join  as 
many  issues  of  law  or  fact  as  the  circumstances  of  the  case 
will  permit.  It  is  not  necessary  for  the  plaintiff  to  deny 
any  special  matter  of  defense  pleaded  by  the  defendant,  it 
bycing  regarded  as  denied  unless  expressly  admitted  ;  but 
when  the  defendant  sets  up  a  counter-claim,  the  plaintiff 
may  answer  in  capacity  of  defendant,  under  the  rules  pre- 
scribed for  defensive  matter.  The  plea  of  reconvention,  or 
counter  claim,  was  obtained  from  the  civil  law,  and  it  may 
be  set  up  in  all  actions  except  those  for  unliquidated 
damages  founded  upon  tort  or  breach  of  contract. 

The  fictions  of  the  common-law  action  of  ejectment  are 
unknown  to  Texas  jurisprudence,  and  the  method  of  ascer- 
taining title  to  realty  is  by  an  action  of  trespass  to  try  title. 
This  action  may  be  accompanied  and  abetted  by  the  civil- 
law  writ  of  sequestration,  which  puts  in  issue  the  right  of 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       47 

immediate  possession.  This  writ  delivers  tlie  property, 
whether  real  or  personal,  into  legal  custody,  subject  to 
replevin,  until  the  title  or  right  of  possession  is  deter- 
mined. It  may,  upon  proper  affidavit,  be  issued  to  protect 
the  property  of  married  women  during  suits  for  divorce, 
pending  the  suits  for  either  the  title  or  possession  of  per- 
sonal property,  and  for  the  foreclosure  of  mortgages.  It 
may  also  be  issued  to  preserve  property  for  the  satisfaction 
of  debts  not  due,  if  the  affidavit  of  the  plaintiff  shows  it 
to  be  necessary.  It  may  be  issued  by  any  judge  or  justice 
of  the  peace,  at  the  beginning  or  during  the  progress  of 
the  trial  at  any  time  before  linal  judgment.  But  it  can  not 
be  issued  in  any  case  until  the  party  seeking  the  remedy 
makes  an  affidavit  in  writing  that  he  is  the  owner  of  the 
property  upon  whicii  he  invokes  the  operation  of  the  writ, 
or  of  some  interest  in  it,  and  is  entitled  to  its  possession. 

Common-law  process  has  never  been  in  use  in  the  Texas 
courts,  and  the  introduction  of  common-law  terms  did  not  al- 
ways import  the  rules  of  that  system  as  to  the  matters  in  regard 
to  which  those  terms  are  used  ;  hence  the  term  scire  facias 
is  often  used  in  reference  to  mere  notice.  Nor  does  the  writ 
of  certiorari  possess  here  entirely  the  same  features  which 
characterize  it  under  the  common  law.  It  is  not  considered 
a  writ  of  right ;  but  rests  solely  in  the  discretion  of  the 
court,  to  be  exercised  upon  principles  of  equity,  except 
when  it  is  invoked  within  two  years  by  persons  interested 
in  the  estates  of  decedents,  or  by  those  who  have  within 
that  time  been  relieved  of  disabilities,  to  revise  in  the  Dis- 
trict Courts  the  probate  proceedings  of  the  County  Courts. 

The  rules  regulating  marital  rio;hts  in  Texas  are  of  civil- 
law  origin.  The  community  interest  subsisting  between  hus- 
band and  wife,  in  all  property  acquired  during  coverture, 
except  by  gift,  devise  or  descent ;  the  preservation  of  the 
separate  interest  of  each  in  all  property  owned  by  either 
prior  to  the  time  of  marriage,  with  the  entirety  of  the 
community  property  to  the  survivor,  or  survivorship  of 
one-half  of  the  ganancial  estate,  if  there  be  children ;  the 
descent  to  the  survivor  of  one-third  of  the  separate  per- 
sonalty   of    either    in    fee    simple,    and    one-third    of    the 


48  BENCH  AND  BAR  OF  TEXAS. 

separate  realty  for  life,  constitute  a  system  of  distribution 
far  more  provident  and  equitable  than  the  antiquated 
common-law  devices  of  dower  and  curtesy. 

The  common-law  rule  of  inheritance  established  in 
Shelly's  case  never  operated  upon  Texas  jurisprudence. 
Every  owner  of  property  is  considered  a  purchaser.  There 
is  no  distinction  made  as  to  its  source;  and  no  person  not 
in  being  at  the  death  of  the  testator,  except  children  and 
lineal  descendants,  can  partake  of  the  right  of  inheritance. 
The  statute  of  descent  and  distributions  follows  rather  the 
precepts  of  the  civil  law  in  determining  both  the  nature  of 
devise  and  the  line  of  descent ;  but  degrees  of  consanguinity 
are  ascertained  and  reckoned  by  tlie  rules  of  the  common 
law,  and  no  marriage  agreement  can  change  the  order  of 
descent 

The  Spanish  law  would  not  permit  a  testator  to  dispose 
of  more  than  one-fifth  of  his  property  adversely  to  his  heirs 
and  lineal  descendants  or  ascendants;  and  this  law,  with 
the  disposable  portion  increased  to  one-f  ourth,  was  of  force  in 
Texas  until  the  passage  of  the  act  of  1856,  which  abolished 
the  doctrine  of  forced  heirship  and  permitted  all  persons 
to  dispose  of  their  entire  property,  either  by  will  or 
otherwise,  in  any  manner  they  might  deem  proper. 

Neither  the  civil  nor  the  common  law  permitted  the 
possession  of  liberty  or  property  exempt  from  the  claims 
of  creditors,  and  it  was  not  until  the  enlightenment  and 
humanity  of  the  present  age  cried  out  against  its  barbarity, 
that  imprisoment  for  debt  has  been  abolished  in  most,  if 
not  in  all  civilized  countries.  But  this  emancipation  from 
its  rigors  extended  no  further.  While  it  could  no  longer 
gather  its  victims  into  debtors'  jails  and  leave  them  to 
languish  and  die  in  loathsome  dungeons,  it  had  universal 
power  to  seize  upon  the  last  necessary  of  life,  and  reduce 
them  to  utter  destitution  and  starvation,  with  a  claim  upon 
every  morsel  of  subsistence  they  might  acquire.  And  while 
the  cruel  practice  of  this  atrocious  doctrine  shocked  the 
humane  sensibilities  of  the  philanthropic  world,  nothing  was 
devised  to  remedy  so  great  an  evU.  No  statesman  dared 
to  encounter  the  strensth  of  a  custom  which  had   existed 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       49 

from  time  immemorial,  until  the  Congress  of  the  Texas 
Republic,  springing  into  life,  freed  from  every  shackle  of 
false  philosophy,  enacted  a  law  in  1839,  exempting  and 
reserving  to  every  citizen  or  head  of  a  family  in  the 
Republic,  free  and  independent  of  the  power  of  any  writ 
oi fieri  facias^  or  other  execution,  fifty  acres  of  land,  or 
one  town  lot,  including  his  or  her  homestead,  with  improve- 
ments to  the  value  of  five  hundred  dollars;  household  and 
kitchen  furniture  not  exceeding  in  value  two  hundred 
dollars;  implements  of  husbandry  to  the  value  of  fifty 
dollars ;  all  tools,  apparatus,  and  books,  belonging  to 
the  trade  or  profession  of  any  citizen  ;  five  milch  cows, 
one  yoke  of  work  oxen  or  one  horse,  twenty  hogs, 
and  provisions  for  one  year.  This  generous  act  shook 
the  maxims  of  antiquity,  startled  the  State  govern- 
ments of  the  American  Union,  and  they  hastened 
one  by  one  to  follow  the  benevolent  example.  It  drew 
many  a  steady  yeoman  from  the  States  who  sought  to 
place  his  wife  and  little  ones  under-  its  protecting  segis, 
beyond  the  reach  of  ficdvle  fortune  and  overwhelming 
fate. 

This  act  was  the  forerunner  and  foundation  of  the  still 
more  bounteous  and  munificent  law  organized  and  embodied 
in  the  organic  system  by  the  Constitution  of  1845,  which 
increased  the  homestead  exemption  to  two  hundred  acres 
of  land,  or,  if  a  town  lot,  to  two  thousand  dollars  in  value, 
made  it  inalienable  by  the  husband  without  the  wife's 
consent,  and  incapable  of  being  incumbered  by  ordinary 
liens. 

The  present  Constitution,  adopted  in  1879,  increases  the 
homestead  exemption,  if  consisting  of  a  town  lot,  to  the 
value  of  five  thousand  dollars  at  the  time  it  was  selected  as 
a  homestead,  regardless  of  subsequent  improvements  or 
increased  value,  prohibits  the  partition  of  the  homestead 
during  the  life  of  the  survivor,  so  long  as  it  is  maintained 
as  such,  and  so  long  as  the  guardian  of  the  minor  children 
of  the  deceased  may  be  permitted  to  occup}^  it  by  the  court 
having  proper  jurisdiction.  The  Constitution  of  1879  also 
greatly  enlarges  the  exemptions  of  the  act  of  1839  as  to 

4. 


50  BENCH  AND  BAR  OF  TEXAS. 

personal  property  ;  so  that  an  independent  means  of  sub- 
sistence is  secured  against  accident,  improvidence,  or  mis- 
fortune to  every  family  in  the  State. 

The  land  laws  of  Texas  are  of  a  complex  and  peculiar 
character  ;  and  it  would  require  a  volume  to  trace  the  vari- 
ous features,  changes  and  multiplied  conditions,  which  have 
characterized  title  and  the  manner  of  acquiring  it  under  the 
sovereignty  and  power  of  eminent  domain  exercised  over 
the  soil  respectively  by  Spain,  Mexico,  Coahuila  and  Texas, 
the  Republic,  and  State.  This  work  can  therefore  embrace 
only  a  notice  of  the  chief  features  and  peculiarities  of  the 
land  laws  which  have  existed  at  difterent  times  since  the 
Texas  Revolution,  and  of  the  system  which  now  prevails  in 
the  State. 

At  the  outbreak  of  the  Revolution  all  land  titles  in  Texas, 
which  were  not  derived  immediately  from  Spanish  or  Mex- 
ican grants,  emanated  from  the  deeds  made  by  alcaldes  and 
land  commissioners  under  domain  grants  of  the  State  to 
empressarios  —  persons  who  had  contracted  with  the  gov- 
ernment to  import  into  the  country  as  many  as  two  hundred 
families  under  the  colonization  laws  of  Coahuila  and  Texas» 
enacted  in  1825.  These  laws  were  evidently  acts  of  usur- 
pation of  a  power  which  belonged  alone  to  the  national 
government.  For  the  Mexican  government  possesses  the 
right  of  eminent  domain  over  the  soil  in  all  the  States  of 
the  confederation,  and  the  Mexican  States  are  therefore 
mere  creatures  of  the  national  government. 

Prior  to  the  acquisition  of  Louisiana  and  Florida  the 
United  States  government  did  not  exercise  the  right  of 
eminent  domain  over  any  of  the  States  and  territories  of 
the  Union,  except  those  portions  which  it  had  acquired  by 
cession  or  purchase  for  national  purposes.  The  right  was 
originally  vested  in  the  States  which  created  the  Union,  and 
they  still  retain  it,  except  perhaps  so  much  as  is  neces^^ary 
to  effectuate  the  judgments  and  execution  sales  of  the  Fed- 
era^  courts,  tribunals  which  ought  not  to  exist  in  the  States, 
for  the  reason  that  to  give  effect  to  their  proceedings  they 
require  virtual  participation  in  a  power  sacred  to  the  States, 
upon  which  their  sovereignty  rests,  and  which  they  can  not 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       51 

surrender  to  the  Union,  nor  divide  with  it  in  any  respect, 
or  to  any  degree,  without  impairing  all  their  other  rights. 

In  regard  to  this  power  there  is  a  curious  decision  in  the 
case  of  McMullen  v.  Hodge,  5  Texas,  74,  which  declares 
that  the  power  of  eminent  domain  flows  from  the  un- 
trammeled  will  of  the  people,  expressed  in  laws  of  their 
own  making.  With  all  due  respect  the  author  can  not 
withhold  his  dissent  from  this  definition.  If  this  be  true, 
all  the  teachings  of  reason  and  writers  are  false,  and  it 
would  upset  the  whole  theory  of  government.  There  can 
be  no  sovereignty  without  this  power,  and  it  must  exist 
prior  to  any  act  of  sovereignty.  The  sale  of  lands  for 
taxes  and  under  execution  is  an  act  of  the  untrammeled 
will  of  the  people  expressed  in  laws  of  their  own  making, 
in  this  country  ;  but  the  power  of  eminent  domain  must 
pre-exist  in  order  to  give  effect  to  both  the  law  and  the 
sale.  Strip  the  quality  of  lord  paramount  of  the  soil  from 
the  Czar  of  Russia  and  every  jewel  in  his  diadem  would 
fall  to  the  ground.  It  is  true  that  in  this  country  the  power 
resides  with  the  people  and  gives  them  the  right  to  exercise 
their  untrammeled  will  in  laws  of  their  own  making;  which 
fiows  from  the  power. 

The  right  of  eminent  domain  being  the  foundation  and 
essence  of  sovereignty,  one  of  the  first  acts  of  the  Provis- 
ional Government  of  Texas  was  the  assertion  and  exercise 
of  this  power  in  the  suppression  of  all  operations  under 
empressario  grants,  and  in  the  discontinuance  of  ail  former 
methods  of  alienating  the  public  lands.  The  Republic 
acquired  the  right  by  revolution,  and  the  pubWc  domain  of 
Texas  was  especially  reserved  to  the  State  in  the  articles  of 
its  annexation  to  the  Union. 

Bnt  notwithstanding  the  overthrow  of  the  former  system, 
the  provisional  act  provided  that  all  citizens  who  had  be- 
come entitled  to  lands  under  the  colonization  laws  of  Coa- 
huila  and  Texas  should  still  receive  them,  and  that  all 
persons  who  might  immigrate  to  Texas  and  perform  the  duties 
of  citizens  during  its  conflict  for  constitutional  liberty, 
should  likewise  enjoy  the  benefits  of  the  colonization  laws 
under  which  they  immigrated.     These  provisions  were  the 


52  BENCH  AND  BAR  OF  TEXAS. 

foundation  and  beginning  of  the  benign  head-rights  system 
under  which  the  larger  portion  of  the  lands  of  the  State 
have  been  granted.  They  were  followed  by  the  bounty 
acts  of  1835,  which  gave  eight  hundred  acres  of  land  to 
every  soldier  in  the  Texan  regular  army,  six  hundred  and 
forty  acres  to  every  volunteer,  and  the  same  to  the  heirs  of 
those  who  misfht  fall  in  battle  or  die  in  the  service. 

In  order  to  carry  these  measures  into  proper  effect,  a 
general  land  office  was  established  in  June,  1837,  and  placed 
under  the  control  of  the  Secretary  of  War,  who  was  re- 
quired to  give  certificates  to  all  persons  entitled  to  lauds 
under  the  bounty  acts,  and  to  record  them  in  his  oflSce. 
In  December,  1837,  this  act  was  extended  so  as  to  embrace 
all  soldiers  who  were  en2;aged  in  the  battle  of  San  Jacinto 
and  the  storming  of  Bexar,  to  whom  company  ofiicers  were 
required  to  give  the  certificates  ;  and  it  embraced  the  heirs 
of  all  who  fell  at  the  butchery  of  Goliad,  the  seige  of  the 
Alamo,  and  other  battles.  Another  act,  passed  about  the 
same  time,  increased  and  graduated  the  bounties  from  three 
hundred  and  twenty  to  twelve  hundred  and  eighty  acres, 
according  to  time  of  service,  and  these  lands  were  made 
inalienable  during  the  life  of  the  donee.  These  acts  of 
bounty  and  donation  confering  head-rights  for  military 
services  extended  to  1858,  and  included  all  soldiers  engaged 
in  the  war  for  independence. 

These  grants,  with  the  head-rio-hts  given  also  to  every 
immigrant  or  head  of  a  family,  and  to  every  male  over 
eighteen  years  of  age,  who  was  a  citizen  of  the  country  at 
the  time  of  the  Declaration  of  Independence  and  remained 
true  to  the  Texan  cause,  composed  a  system  and  policy, 
which  were  as  provident  of  the  increase  of  population  as 
they  were  benevolent  in  spirit  and  operation. 

In  consequence  of  the  magnitude  of  business  inaugurated 
by  these  provisions,  an  act  was  passed  in  1837  establishing 
a  separate  land  ofiice,  and  providing  for  a  general  land  com- 
missioner to  preside  over  the  interests  of  the  Republic  in 
respect  to  its  public  domain.  He  was  to  be  appointed  by 
the  President  and  maintain  his  office  at  the  seat  of  govern- 
ment; 3'et  it  seems  that  this  office  was  not  opened  to  all 


OEGANIZxVTION    OF    THE    TEXAS    STATE    GOVERNMENT.       53 

classes  of  grants  until  1844,  and  its  business  prior  to  that 
time  was  confined  chiefly  to  bounty  and  donation  grants  to 
soldiers  and  head-rights  to  citizens,  who  were  dutiful  dur- 
ing the  struggle  for  independence.  The  Secretary  of  War 
continued  to  issue  bounty  and  donation  warrants  until  the 
close  of  the  Texan  war  office  in  1846,  and  this  branch  of 
his  business  was  then  assigned  to  the  adjutant-general  of 
the  State. 

The  act  of  May,  1846,  establishing  a  general  land  office 
at  the  seat  of  government,  gave  the  commissioner  power  to 
execute  and  perform  all  acts  and  things  respecting  the 
public  lands  or  the  rights  of  individuals  in  reference  to 
them,  and  provided  him  with  an  ample  corps  of  clerks  and 
assistants.  This  was  the  beginning  of  that  extensive  sys- 
tem, with  its  perfect  and  harmonious  machinery,  Avhich 
now  embraces  the  supervision  and  entire  management  of 
the  public  domain  of  Texas  ;  and  which,  under  the  present 
efficient  commissioner,  Maj.  W.  C.  Walsh,  casts  an  eye  of 
scrutiny  upon  every  transaction  concerning  the  public  lands, 
which  it  is  scarcely  possible  to  evade. 

But  to  comprehend  the  necessary  steps  for  obtaining 
patents  under  this  precise  and  complicated  system,  and  to 
know  where  to  find  evidence  of  ownership  requires  a 
thorough  knowledge  of  its  appurtenances  and  operations. 
Muniments  of  title  are  scattered  throughout  the  entire  judi- 
cial system  of  the  state,  and  to  trace  an  old  land  title 
through  all  the  variety  of  grants  and  modes  of  conveyance, 
with  their  various  conditions  and  requirements  ;  through 
the  operation  of  wills,  marriage,  forced  heirship,  limita- 
tions, executions  and  tax  sales;  through  the  obscuring  as- 
sociation of  conflicting  locations,  adverse  surveys,  dupli- 
cate certificates  and  fraudulent  grants,  is  perhaps  the  most 
tedious  task  that  a  Texas  lawyer  could  be  called  upon  to 
perform. 

Every  organized  county  in  the  state,  which  maintains  a 
legally  qualified  surveyor,  constitutes  a  separate  land  dis- 
trict. The  district  or  county  surveyor  is  required  to  exam- 
ine the  field  notes  of  all  surveys  made  in  his  district  by  his 
authority,  upon  which  patents  are  sought  to  be  obtained, 


54  BENCH  AND  BAR  OF  TEXAS. 

and  certify  to  their  legality  and  correctness  ;  and  he  is  also 
required  to  keep  in  his  office  a  map  subject  to  public  in- 
spection, on  which  all  the  surveys  made  in  his  county  are 
plainly  indicated.  He  is  commanded  to  transmit  every 
three  months  all  sketches  and  field  notes  made  during  that 
time  to  the  commissioner  of  the  general  land  office,  and 
also  a  full  description  of  all  land  certificates  and  warrants 
on  file  in  his  office. 

Any  person  desiring  to  make  an  entry  or  location  of  land 
must  apply  in  writing  to  the  county  surveyor,  and  file  with 
him  the  evidence  of  his  claim  or  title  to  the  land  Avhich  he 
wishes  to  have  surveyed  ;  also  a  certificate,  if  of  the  first  or 
second  class,  certified  by  the  clerk  of  the  County  Court,  or 
commissioner  of  the  general  land  office.  The  application, 
evidence  of  title  or  claim,  and  the  field  notes  of  the  survey 
are  then  transmitted  to  the  general  office,  where  the  whole 
matter  is  subjected  to  thorough  investigation,  and  if  the 
claim  is  found  to  be  genuine  and  correct  a  patent  is  issued 
to  the  applicant  in  the  name  and  under  the  seal  of  the  State, 
signed  by  the  Governor,  countersigned  by  the  commissioner 
and  registered  in  the  general  land  office. 

Every  head  of  a  family  without  a  home  can  obtain  a 
homestead  donation  of  one  hundred  and  sixty  acres,  and 
every  young  man  in  the  State  eighteen  years  of  age  can 
have  eighty  acres,  anywhere  in  the  public  domain,  simply 
upon  entry  and  compliance  with  the  foregoing  requirements 
as  to  survey.  But  to  prevent  fraud  no  patent  can  be  issued 
upon  these  donation  certificates  until  the  expiration  of  three 
years  of  continued  occupancy  by  the  settler  or  those  who 
claim  through  him. 

A  provision  no  less  benign  is  that  which  gives  the  right 
of  pre-emption.  Every  person  in  the  State,  who  is  eighteen 
years  of  age,  has  the  privilege  over  all  others  to  purchase 
and  pre-empt  within  one  year,  at  one  dollar  per  acre,  in- 
cluding the  improvements,  one  hundred  and  sixty  acres  of 
the  public  land,  upon  which  he  may  have  entered  and  set- 
tled in  good  faith,  provided  that  he  makes  application  for  a 
survey  and  certificate  of  the  right  at  the  time  of  occu- 
pancy. 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       55 

These  benevolent  laws  have  established  thousands  of  Texan 
familes  in  a  condition  of  happiness,  prosperity  and  use- 
fulness. There  is  no  excuse  for  healthy  indigence.  The  State 
stands  with  the  outstreched  arms  of  welcome  and  benevo- 
lence. With  one  hand  she  beckons  the  entei-prising  and 
industrious,  and  with  the  other  she  points  every  person  to  a 
home  who  enters  her  borders. 

But  amid  this  benign  effulgence  of  Texas  jurisprudence 
its  liberal  and  comprehensive  educational  system  presents, 
if  possible,  a  superior  glow.  No  Stat«,  no  country,  ever 
made  such  ample  and  durable  provision  for  general  public 
education  as  that  which  graces  the  statutes  of  the  State  of 
Texas,  and  only  a  matter  of  time  can  intervene  before  her 
higher  institutions  of  learning  will  take  their  stand  among 
the  best  endowed  and  most  efficient  in  America. 

The  Texas  Kepublic,  b}"^  an  act  in  1839,  set  apart  fifty 
leagues  of  land  for  two  universities,  and  three  leagues  in 
every  county  for  the  purpose  of  establishing  in  each  a 
primary  school  or  academy,  and  this  was  increased  by  the 
act  of  1840  to  four  leagues,  appropiated  in  each  county  to 
school  purposes.  These  were  protected  from  settlement 
by  the  act  of  1856,  which  precluded  settlers  upon  the  school 
lands  from  the  benefits  of  the  statute  of  limitations.  The 
constitution  of  1845  required  one-tenth  of  the  annual  rev- 
enues of  the  State  to  be  set  aside  for  educational  purposes, 
and  the  act  of  1854  appropriated  to  this  fund  two  millions 
of  United  States  five  per  cent  bonds,  which  was  to  be  a 
special  school  fund  with  the  interest  accruing  to  school  pur- 
poses. The  act  of  1858  established  the  University  of  Texas 
and  appropriated  one  hundred  thousand  dollars  of  United 
States  bonds  for  its  maintenance,  in  addition  to  the  fifty 
leagues  set  apart  for  university  purposes  by  the  Republic, 
and  to  this  was  added  one-tenth  of  all  the  lands  which  had 
been  reserved  and  set  apart  for  the  encouragement  of  the 
construction  of  railroads. 

A  large  portion  of  these  funds  and  the  proceeds  of  the 
sales  of  the  school  lands  were  used  in  appropriations  for 
frontier  defences  during  the  civil  war,  and  together  with 
those  loaned  to  the  railroads,  which  were  permitted  to    re- 


56  BENCH    AND    BAR    OF    TEXAS. 

place  them  with  treasury  notes  and  coupons  of  the  Confed- 
erate States,  were  entirely  lost  to  the  school  system. 

The  Constitution  of  1866  created  a  perpetual  school  fund 
consisting  of  all  former  dedications  and  appropriations 
made  for  that  purpose  and  an  alter^iate  section  of  all  lands 
granted  to  railroads,  with  an  incomprehensible  provision 
that  if  any  portion  of  the  public  domain  should  at  any  time 
be  sold  to  the  United  States,  one  half  of  the  proceeds 
should  accrue  to  the  public  schools.  It  also  provided  for 
the  levy  of  a  special  school  tax  and  forbade  the  loan  of  the 
school  funds,  and  restricted  their  investment  to  United 
States  bonds,  or  the  bonds  of  the  State  of  Texas  and  to 
such  bonds  as  the  State  might  indorse. 

But  it  was  left  for  the  present  Constitution  of  Texas, 
adopted  in  1875,  to  crown  with  benevolence  all  known  laws 
and  legislation  providing  for  the  education  of  the  young  in 
any  State  or  country.  In  addition  to  former  appropriations, 
one-half  of  the  public  domain  of  the  State,  and  all  sums 
arising  from  the  sale  of  any  portion  of  it,  constitute  a 
perpetual  school  fund;  and  a  portion  of  the  public  revenue, 
not  to  exceed  one-fourth,  also  a  capitation  tax  of  one  dollar 
on  every  male  citizen  between  the  ages  of  twenty-one  and 
sixty  years,  are  annually  set  apart  for  the  benefit  of  the 
public  free  schools.  These  funds  are  placed  beyond  the 
power  of  any  other  appropriation  whatever.  This  Consti- 
tution provides  for  the  establishment  of  a  "  University  of 
Texas,"  which  shall  include  an  agricultural  and  mechanical 
department.  In  addition  to  former  grants  it  sets  apart  one 
million  acres  of  the  public  lands  for  the  benefit  of  the 
university,  and  requires  the  Legislature  to  provide  for  and 
maintain  an  institution  of  the  first  class.  The  Governor, 
Controller  of  Public  Accounts  and  the  Secretary  of  State 
are  constituted  a  board  of  public  education,  and  are  required 
to  make  a  proper  distribution  of  the  school  funds  among 
the  counties.  Separate  schools  are  provided  for  the  two 
races,  and  no  school  with  a  mixed  attendance  of  the  white 
race  and  negroes  or  their  descendants  to  the  third  grener- 
ation  can  participate  in  the  benefits  of  the  public  school 
fund. 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       57 

The  amended  Constitution  of  1883  went  yet  further  in 
making  appropriations  to  the  school  system,  and  gave  it 
one-fourth  of  the  revenue  derived  from  the  State  occupation 
taxes,  and  added  to  this  the  levy  of  an  annual  ad  valorem 
State  tax  of  such  an  amount,  not  to  exceed  twenty  cents  on 
every  one  hundred  dollars,  valuation,  as,  with  the  available 
school  fund  arising  from  all  other  sources,  will  be  sufficient 
to  maintain  the  public  free  schools  for  a  period  of  not  less 
than  six  months  in  each  year.  The  Legislature  was  author- 
ized to  form  school  districts  within  all  or  any  of  the 
counties  of  the  State,  and  authorize  an  additional  ad  valorem 
tax  to  be  levied  and  collected  in  these  districts  for  the 
further  maintenance  of  the  public  schools  in  each  system; 
provided  that  two-thirds  of  the  qualified  voters  in  each 
district  shall  vote  such  tax,  which  is  not  to  exceed  twenty 
cents  per  annum  on  every  one  hundred  dollars,  in  valuation 
of  the  property  subject  to  taxation  in  the  district.  But  this 
limitation  of  the  tax  does  not  apply  to  cities  and  towns 
constituting  separate  school  districts. 

The  Legislature  by  an  act  of  January,  1884,  provided 
for  the  election  of  a  State  superintendent  of  public  instruc- 
tion, to  be  chosen  at  each  general  election  of  State  and 
county  officers,  who  shall  also  be  ex-officio  secretary  of  the 
state  board  of  education.  He  is  charged  with  the  admin- 
istration of  the  school  law,  and  w^ith  a  general  superinteud- 
ency  of  all  matters  relating  to  the  public  schools  of  the 
State.  He  is  required  to  make  an  annual  apportionment 
of  the  available  school  funds  among  the  counties,  and  to 
the  cities  and  towns  which  constitute  separate  school  organ- 
izations, according  to  the  scholastic  population  of  each. 
The  county  judges  have,  under  the  direction  of  the  State 
superintendent,  the  immediate  supervision  of  all  matters 
pertaining  to  public  education  in  their  'respective  coun- 
ties. 

This  system,  with  its  vast  and  perpetual  endowment  and 
comprehensive  organization,  affords  a  basis  of  a  universal 
popular  education,  around  which  cluster  the  brightest  hope.-> 
and  prospects  of  the  State.  As  the  benign  donation,  pre- 
emption and  exemption  laws  preclude  all  excuse  for  indi- 


58  BENCH  AND  BAR  OF  TEXAS. 

geuce,  so  the  liberal  school  system  removes  all  reasonable 
grounds  in  which  ignorance  and  illiteracy  can  take  root. 

The  act  required  the  Governor  to  appoint  a  superintend- 
ent immediately ;  and  the  cultured  young  gentleman  who 
was  assigned  to  that  duty,  and  who  has  since  been  elected 
by  the  people,  has  a  ^rand  and  noble  task  before  him, 
which  his  energy  and  efficiency  will  doubtless  accomplish  in 
a  development  of  the  public  school  system  into  a  practical 
benevolence,  philanthropy  and  public  good,  which  will  be 
his  greatest  personal  credit,  and  the  highest  honor  of  his 
State. 

The  criminal  laws  of  Texas  are  of  a  purely  statutory 
character.  They  are  embodied  in  a  penal  code  prepared 
by  two  able  lawyers  — John  W.  Harris  and  James  Willie  — 
in  pursuance  of  an  act  of  the  Legislature  passed  on  the  11th 
of  February,  18.')4.  This  code  became  the  law  of  the  State 
in  February,  1857.  Its  design  was  declared  to  be  the  defi- 
nition in  plain  and  unmistakable  language  of  every  offense 
against  the  laws  of  the  State,  and  to  assign  to  each  its 
proper  punishment ;  so  that  the  penal  law  of  the  State 
might  be  complete  within  itself  and  have  no  dependence 
upon  any  laws,  written  or  unwritten,  of  any  foreign  system ; 
and  it  was  declared  that  no  person  should  be  punished  for 
any  offense  which  was  not  expressly  defined  and  the  penalty 
affixed  by  the  statute  laws  of  the  State.  The  common  law, 
however,  is  retained  as  a  rule  of  construction  when  not  in 
conflict  with  any  statutory  provision.  The  code  and  every 
law  enacted  upon  the  subject  of  crime  is  to  be  construed 
according  to  the  plain  import  of  the  language  in  which  it  is 
written  without  regard  to  technical  distinctions  or  any 
difference  of  construction  between  penal  laws  and  those 
upon  other  subjects.  No  person  can  be  convicted  of  an 
offense  who  is  under  nine  years  of  age,  nor  who  is  under 
thirteen  unless  sufficient  discretion  be  proven.  No  person 
can  be  punished  with  death  who  has  not  attained  the  age  of 
seventeen  years,  nor  can  a  married  woman  who  commits  an 
offense  by  the  command  or  persuasion  of  her  husband;  but 
she  may  be  imprisoned  for  life.  The  common-law  rules  of 
evidence  are  observed  in  respect  to  the  proof  of  insanity  in 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       59 

the  trial  of  all  offenses  in  which  that  plea  is  made.  All 
persons  who  act  together  in  the  commission  of  crime  are 
deemed  principals,  and  all  persons  present  at  the  commis- 
sion of  an  offense  who  advise,  encourage,  or  aofree  to  its 
perpetration  are  likewise  held  to  be  guilty  of  the  act. 

Neither  the  husband  nor  wife  of  an  offender  can  be  an 
accessory,  nor  his  brothers  and  sisters,  nor  his  domestic 
servants,  nor  his  relations  by  consanguinity  or  affinity  in 
either  line.  These,  when  accomplices,  bearing  authorita- 
tive relations  to  the  principal,  receive,  the  highest  pen- 
alty affixed  to  the  offenses,  and  there  may  be  accomplices 
in  all  offenses  except  in  manslaughter  and  negligent  homi- 
cide. 

The  punishments  which  may  be  inflicted  under  the  code 
are  death,  imprisonment  in  the  penitentiary  for  life  or  a 
term  of  years,  or  in  the  county  jail;  forfeiture  of  civil  or 
political  rights,  and  pecuniary  fines.  There  are  but  three 
offenses  which  can  incur  the  penalty  of  death  —  these  are 
treason,  murder  and  rape.  Those  for  which  the  punish- 
ment may  be  imprisonment  in  the  penitentiary  are  murder 
in  the  second  degree,  arson,  robbery,  burglar}^  rape,  theft, 
forgery,  and  conspiracy  to  commit  either  of  these  crimes  ; 
misprision  of  treason,  manslaughter,  assault  with  intent  to 
commit  a  felony,  maiming  or  disfiguring  the  person  of 
another,  kidnaping  and  abduction,  abortion,  seduction, 
administering  poisonous  and  injurious  potions,  dueling, 
willful  burning,  malicious  misdiief ,  misapplication  of  public 
money,  dealing  in  fraudulent  land  certificates,  bribery, 
perjury,  counterfeiting,  permitting  escapes  by  officers; 
giving  false  land  certificates,  authentication  or  entr}'  by  an 
officer,  false  swearing  and  subornation,  conversion  of  money, 
script  or  other  evidences  of  debt  by  officers,  the  rescue  of 
convicted  felons,  bigamy,  miscegenation,  incest,  sodomy, 
giving  false  certificates  by  public  weighers,  illegal  marking 
and  branding,  altering  or  defacing  marks  and  brands,  em- 
bezzlement, swindling,  and  fraudulent  disposition  of  mort- 
gaged property.^ 

Offenses  which  may  incur  imprisonment  in  the  county 
jail  are:   aggravated   assault  and  battery,  negligent  homi- 


60  BENCH  AND  BAK  OF  TEXAS. 

cide,  disturbing  public  worship,  offenses  affecting  suffrage, 
failure  of  duty  on  the  part  of  officers,  barratry,  malicious 
prosecution,  false  personification,  riots,  rescue  of  prisoners 
convicted  of  misdemeanors,  preventing  labor,  desecration 
of  graves,  using  false  weights  and  measures,  false  impris- 
onment, libelling,  slandering,  false  accusations  and  threats 
of  prosecution,  spreading  infectious  diseases,  threats  to 
take  life,  sending  threatening  letters,  and  petty  thefts. 

Those  which  may  receive  only  a  pecuniary  punishment 
are :  illegal  contracts  affecting  the  State,  extortion  in  the 
collection  of  taxes  or  other  public  money,  dealing  in  public 
lands  by  officers,  drunkenness  in  office  or  in  public  places, 
bribing  the  officers  of  elections,  offenses  committed  by 
them,  disturbing  public  worship,  violating  the  Sunday 
laws,  extortion  b}'-  officers,  official  peculation,  failure  of  offi- 
cial duty,  barratry,  compounding  crime,  malicious  prose- 
cution, false  personification,  unlawful  assemblies,  riots, 
disturbing  residence,  affrays  and  breaches  of  the  peace, 
unlawfully  carrying  arms,  adultery  and  fornication,  keep- 
ino-  disorderly  houses,  indecent  publications  and  exposure 
of  the  person,  desecration  of  graves,  illegal  disinterment, 
illegal  banking,  conducting  a  lottery  or  raffle,  gaming,  bet- 
ting at  elections,  unlawfully  selling  intoxicating  liquors, 
vagrancy,  illegal  pawn-brokerage  and  violation  of  the  insur- 
ance laws,  carrying  on  offensive  trades  and  nuisances, 
pollution  and  obstruction  of  water-courses,  selling  un- 
wholesome food,  drink  or  naedicine,  unlawful  practice  of 
medicine,  violating  quarantine  laws,  obstructing  roads, 
streets,  bridges  and  navigable  streams,  refusal  to  serve  and 
failure  of  duty  as  overseer  of  public  roads  and  irrigation, 
keeping  a  ferry  without  license,  injuring  public  grounds 
and  buildings,  trapping  and  netting  out  of  season,  using 
false  weights  and  measures,  simple  assault  or  battery,  false 
imprisonment,  kidnaping  and  abduction,  attempt  to  pro- 
duce abortion,  negligent  homicide,  hbelling,  slandering, 
false  accusations  and  threats  of  prosecution,  willful  burn- 
ino;,  malicious  mischief,  spreading  infectious  diseases, 
destroying  timber,  selling  stock  without  a  list  of  the  brands 
or  bill  of  sale,  butchering  animals  without  brand,  failing  to 


ORGANIZATION    OF    THE    TEXAS    STATE    GOVERNMENT.       61 

make  report  of  animals  slaughtered  for  market,  selling 
stock  by  auctioneers  without  written  statement  as  to  their 
acquisition,  unlawfully  using  or  disposing  of  estrays,  the 
giving  of  fraudulent  certificates  by  public  inspectors,  threats 
to  take  life,  sending  threatening  letters,  and  petty  theft. 

All  offenders  suffer  double  penalty  upon  a  second  con- 
viction, and  may  receive  quadruple  punishment  upon  a 
third  and  subsequent  conviction;  and  when  an  offense  of 
which  a  person  is  convicted  is  continuous  in  its  nature, 
judgment  is  also  rendered  for  its  suppression.  All  convic- 
tions of  felony  work  a  forfeiture  of  political  rights. 

The  act  of  1879,  declaring  the  penal  code  to  comprise 
the  entire  criminal  jurisprudence  of  the  State,  also  adopted 
a  code  of  criminal  procedure,  embracing  its  entire  criminal 
judicature.  The  object  of  this  code,  as  declared,  was  to 
render  the  rules  for  the  prevention  and  punishment  of 
offenses  intelligible  to  the  officers  of  the  law,  and  to  all 
persons  whose  rights  might  be  affected  by  them  ;  to  prevent 
the  commission  of  crime,  and  all  hope  of  escaping  its  penal 
consequences  ;  to  insure  a  fair  and  speedy  trial,  and  the 
production  of  all  important  evidence,  and  to  provide  for 
certain  execution  of  sentence  where  the  law  is  declared.  It 
is  also  provided  that  if  any  necessity  should  arise  for  a  rule 
of  procedure  not  contained  in  this  code,  the  rules  of  the 
common  law  shall  be  applied  and  govern.  This  code  de- 
fines the  general  duties  of  olScers  charged  with  the  enforce- 
ment of  the  criminal  laws,  fixes  the  criminal  jurisdiction  of 
the  several  courts,  lavs  down  rules  and  proceedings  for  the 
prevention  and  suppression  of  offenses,  and  in  regard  to  the 
writ  of  habeas  corpus.  It  provides  the  time  and  place  for 
the  commencement  of  criminal  actions,  with  the  incidents 
of  arrest,  commitment,  bail,  and  search-warrants  ;  presents 
rules  for  the  organization  of  grand  juries,  and  defines  their 
duties  ;  describes  the  nature  and  requirements  of  indict- 
ments and  informations,  and  of  all  proceedings  preliminary 
to  trial.  It  provides  ample  and  elaborate  rules  in  regard  to 
trial  and  its  incidents,  also  in  respect  to  proceedings  after 
verdict,  and  all  miscellaneous  proceedings  connected  with 
criminal  trials. 


62  BENCH  AND  BAR  OF  TEXAS. 

This  general  view  of  Texas  jurisprudence  reaches  the 
limits  of  the  scope  of  this  work,  and  the  following  chap- 
ters will  be  devoted  to  biographies  of  the  eminent  judges 
and  lawyers  whose  professional  careers  have  made  im- 
portant impression  upon  the  jurisprudence  of  the  State  ; 
and  with  these  will  be  interwoven  such  details  and  promi- 
nent features  as  will  promote  an  exposition  of  the  pecu- 
liarities of  Texas  jurisprudence  and  preserve  the  memory 
of  the  professional  eminence  which  it  has  produced. 


CHAPTER    Y. 


THE  BENCH  OF  THE  REPUBLIC  AND  STATE  —  EMINENT  JUDGES,  DECEASED  — 
JAMES  T.  COLLINGSWOKTH — THOMAS  J.  RUSK  —  JOHN  HEMPHILL  —  AN- 
DERSON HUTCHINSON  —  R.  E.  B.  BAYLOR  —  RICHARD  MORRIS — WM.  B. 
OCHILTREE  —  ABNER  S.  LIPSCOMB  —  R.  T.  WHEELER  —  GEORGE  F.  MOORE 
—  A.  J.  HAMILTON  — LEMUEL  D.  EVANS  —  PETER  W.  GRAY  —  M.  H.  BON- 
NER—S.  P.  DONLEY  —  THOMAS  H.  DUVAL  —  AMOS  K.  MORRILL  —  M.  D. 
ECTOR  —  0.  M.  WINKLER  —  BENJAMIN  0.  FRANKLIN  —  RICHARDSON  A. 
SCURRY  —  WILLIAM  S.  TODD. 

Of  all  the  varied  characters  of  men  there  is  no  one  whose 
traits  are  wrought  to  a  higher  standard  of  excellence,  and 
whose  composition  is  more  devoid  of  the  petty  weaknesses 
as  well  as  the  grosser  foibles  of  mankind,  than  that  of  a 
truly  learned,  just  and  upright  judge.  His  functions  are 
among  the  most  sacred  and  elevated  that  pertain  to  the 
affairs  of  humanity,  and  he  feels  the  weight  of  that  respon- 
sibility which  incurs  from  a  higher  seat  the  same  judgment 
which  he  has  meted  to  others. 

His  mind  is  at  once  the  sun  and  moon  of  the  law.  It 
sheds  its  beams  upon  its  obscure  features,  illumines  without 
lenifying  its  stern  aspect,  and  in  turn  reflects  its  light  upon 
the  face  of  society,  penetrates  the  dark  confines  of  human 
depravity,  and  presents  a  beacon  for  the  guidance  of  recti- 
tude. 

His  heart  is  a  tablet  upon  which  are  inscribed  in  mingled 
characters  the  rigid  outlines  of  justice,  the  stern  mandates 
of  a  jealous  rule,  and  the  smiling  pictures  of  benevolence 
and  philanthropy.  He  knows  no  passion  but  his  devotion 
to  duty;  he  cherishes  no  motive  but  the  attainment  of  jus- 
tice ;  he  fears  no  displeasure  but  the  reprimand  of  con- 
science, and  seeks  no  applause  but  the  benediction  of  right. 

His  conscience  vibrates  at  the  tenderest  touch  of  doubt, 
and  uttere  its  strains  of  hallowed  dictation  at  the  sliffhtest 
appeal  of  virtue.     His  judgment  stays  to  catch  the  notes 

(63) 


64  BENCH  AND  BAR  OF  TEXAS. 

of  its  approbation,  and  his  actions  leap  forth  at  its  bidding. 
It  is  there  alone  that  he  seeks  for  justification  and  reward, 
and  there  finds  himself  the  sanctified  recipient  of  the  bless- 
ing vouchsafed  to  the  faithful  servant.  He  holds  to  the 
sentiment  of  Persius,  ^^  Nee  tequassiveris extra ^''  and  which 
Dryden  has  happily  translated  ;  — 

•'  The  conscience  is  the  test  of  every  mind; 
Seek  not  thyself,  without  thyself,  to  And." 

This  precept  forced  itself  as  a  necessity  upon  the  con- 
duct of  the  early  judges  of  the  Texas  courts.  Without 
applicable  precedent,  or  the  controlling  maxims  of  any  fixed 
system,  they  were  guided  by  reason,  by  analogy,  and, 
above  all,  by*  their  own  conscientious  views  of  right  and 
wrong.  That  these  were  sometimes  speculative  and  often 
conflicting,  was  but  the  natural  effect  of  the  different 
shapes  and  colors  in  which  things  present  themselves  to  the 
varied  mental  visions  of  mankind.  Their  reasoning  was 
not  to  fit  circumstances  to  law,  but  to  adjust  the  law  to  the 
facts,  and  conscience  was  the  plumb-line  of  the  measure- 
ment. 

On  thie  erection  of  Texas  into  a  separate  superior  judicial 
district  in  1834,  by  the  Congress  of  Coahuila  and  Texas, 
Thomas  Chambers  was  appointed  superior  judge,  and  was 
the  incumbent  of  that  office  when  the  provisional  system  of 
the  Consultation  intervened  in  1835.  The  first  chief  justice 
of  the  Republic  was  James  T.  CoUinsworth,  a  lawyer  of 
ability,  who  had  been  United  States  district  attorney  in 
Tennessee.  He  committed  suicide  by  leaping  from  the 
deck  of  a  vessel  in  Galveston  bay  before  he  had  held  any 
regular  tei-m  of  the  Supreme  Court,  and  was  succeeded  by 
the  subject  of  the  following  sketch. 


THOMAS   J.  RUSK.  65 


THOMAS    J.    RUSK. 


Thomas  Jefferson  Rusk,  a  Texan  general,  jurist  and 
8tatesm>an,  was  born  in  Pendleton  district,  South  Carolina, 
on  the  5th  of  December,  1803.  His  father  ^vks  a  native  of 
Ireland,  and  pursued  the  occupation  of  a  stane  mason. 
Being  honest  and  industrious,  he  secured  a  residence  upon 
land  belonging  to  John  C.  Calhoun ;  and  here,  under  the 
inspiring  influence  of  the  great  Southerner,  the  subject  of 
this  sketch  received  his  first  ambitious  impressions,  and 
became  imbued  with  that  love  of  freedom  and  broad  view 
of  human  rights  and  human  destiny  which  grew  and  devel- 
oped into  qualities  that  made  him  one  of  the  heroes  af  a 
young  nation  struggling  for  constitutional  liberty.  Mr. 
Calhoun  discovered  the  budding  capacity  and  glowing 
ambition  of  his  young  tenant,  and  procured  him  a  situation 
in  the  office  of  the  district  clerk,  where  he  earned  a  living 
and  at  the  same  time  prepared  himself  for  the  bar.  On 
obtaining  license  to  practice  law,  he  removed  to  Clarksville, 
Georgia,  and  soon  obtained  prominence  in  his  profession. 
But  here,  in  the  midst  of  the  gold  region  of  that  State,  his 
ardent  nature  and  enterprising  spirit  caused  him  to  be 
drawn  into  the  tide  of  speculation,  which  at  that  time  rolled 
its  sparkling  bubbles  over  that  portion  of  Georgia,  alluring 
men  of  all  professions  into  its  seductive  but  often  ruinous 
vortex.  Mr.  Rusk  invested  his  means  in  the  stock  of  a 
company  of  land  and  mine  speculators,  the  managers  of 
which  embezzled  the  corporation  funds  in  1835,  and  fled  to 
Texas.  He  pursued  Ihem,  and  on  arriving  at  Nacogdoches, 
was  so  well  pleased  with  the  appearance  of  the  country 
that  he  determined  to  make  that  place  his  future  home. 
But  the  turbulent  times  immediately  preceding  the  Texas 
Revolution  produced  events  that  stirred  the  fires  of 
5 


66  BENCH  AXD  BAR  OF  TEXAS. 

patriotism  which  had  been  kindled  in  the  bosom  of  his 
youth,  and  at  the  head  of  a  body  of  Texans  whom  his 
enthusiasm  had  aroused,  he  hastened  to  check  and  avenge 
the  massacre  of  Americans  by  Mexicans  in  the  country 
between  the  Brazos  and  the  Rio  Grande.  From  this  time 
he  devoted  himself  entirely  to  the  achievement  of  Texan 
independence.  He  was  a  colonel  in  the  siege  of  San 
Antonio,  and  a  member  of  the  convention  which  declared 
the  independence  of  the  Texan  Republic.  In  the  organi- 
zation of  the  new  government  he  was  appointed  secretary 
of  war,  and  established  his  office  at  the  headquarters  of  the 
Texan  army  ;  and  while  it  was  retreating  eastward  after 
the  fall  of  the  Alamo  and  the  defeat  of  Col.  Fannin,  he 
ordered  the  countermarch  which  culminated  in  the  battle  of 
San  Jacinto.  When  Gen.  Houston  was  wounded  in  the 
beginning  of  that  action,  Col.  Rusk  assumed  command, 
and  led  the  charge  which  put  the  enemy  to  route.  The 
wound  of  Gen.  Houston  having  disabled  him  from  active 
service,  Col.  Rusk  was  made  a  brigadier-general,  and  placed 
in  command  of  the  Texan  army.  His  conduct  throughout 
the  struggle  was  characterized  by  the  utmost  vigor  and 
courage.  He  was  prompt  to  move  in  whatever  direction 
the  army  was  needed,  and  was  always  ready  for  battle. 

After  the  retreat  of  the  Mexicans  he  proceeded  to  Goliad, 
the  scene  of  Fannin's  defeat,  and  caused  the  mutilated  and 
seared  remains  of  the  Texans,  which  were  scattered  over 
the  field,  to  be  gathered  up,  and  when  they  were  brought 
together  for  burial  he  delivered  over  them  an  oration, 
which,  in  eloquence  and  pathos  was  unsurpassed  by  that  of 
Pericles  over  those  who  fell  in  the  Samian  war,  in  which  he 
endeavored  to  impress  the  devoted  patriotism  of  the  dead 
as  an  example  of  glory  upon  the  living.  It  is  said  that 
many  a  rough  and  hardy  soldier,  whose  eyes  had  never 
since  childhood  been  wet  with  the  waters  of  sorrow  or 
sympathy  shed  copious  tears  that  day  over  the  half  con- 
sumed bones  of  his  comrades,  which,  after  the  funeral 
oration  of  the  General,  were  deposited  with  the  honors  of 
war  in  one  common  sepulchre. 

In  the  fall  of  1836,  Gen.  Rusk  was  appointed  to  a  seat 


THOMAS    J.  KUSK.  67 

in  the  Cabinet  of  President  Houston,  but  soon  resigned  in 
consequence  of  the  condition  of  his  private  affairs,  which 
at  that  time  claimed  his  whole  attention.  In  1837  he  was 
elected  from  Nacoo-doches  to  a  seat  in  the  second  Congress 
of  the  Republic,  and  during  the  ensuing  year  was  engaged 
in  the  war  with  the  Cherokees,  Caddoes  and  other  tribes  of 
Indians  which  had  been  incited  by  the  Mexicans  to  acts  of 
rapine  and  atrocity  in  Northern  and  Eastern  Texas.  In 
February,  1839,  he  was  elected  by  Congress  to  the  office 
of  Chief  Justice  of  the  Republic,  which  he  occupied  one 
year,  and  resigned  in  order  to  again  return  to  the  super- 
vision of  his  domestic  affairs.  His  decisions,  only  five  in 
number,  are  reported  in  Dallam's  Digest. 

It  can  not  be  said  of  Judge  Rusk  that  he  was  a  learned 
judge  or  a  profound  lawyer.  Flung  in  the  prime  of  life 
into  the  van  of  a  revolution  which  quickened  and  engaged 
every  energy  of  his  nature  his  lucuhrationes  annorum  viginti 
were  divided  between  the  forum,  the  field  and  the  halls  of 
legislation,  in  which  the  new  government  was  putting  on 
the  panoply  of  an  independent  nation.  But  his  knowledge 
of  law  was  equal  to  the  circumstances  which  surrounded 
him.  If  his  opinions  are  apparently  arbitrary  and  senten- 
tious in  their  brevity,  it  must  be  borne  in  mind  that  it 
would  have  been  absurd  to  quote  precedents  and  authorities 
from  systems  of  law  which  had  not  been  adopted  by  the 
republic,  and  it  would  likewise  have  been  folly  to  attempt 
to  explain  the  various  impressions  which  the  multiplied 
detailsof  circumstance  made  upon  his  mind  in  the  formation 
of  opinion,  if  indeed  it  were  possible  for  any  one  to  present 
at  all  times  an  intelligent  analysis  of  the  mental  process 
which  leads  to  conviction. 

On  retiring  from  the  bench  Judge  Rusk  resumed  his 
practice,  and  took  his  place  at  the  head  of  the  bar  of  the 
Republic;  but  while  he  was  a  lawyer  of  sound  judgment, 
of  a  clear  perception  of  right  and  wrong,  and  of  a  deep 
sense  of  justice,  his  abilities  as  a  statesman  and  as  a  leader 
of  men  were  pre-eminent,  and  in  1843  he  was  again  called 
to  public  service,  and  was  appointed  brigadier-general  of 
militia,  an  office  which  conferred  upon  him  almost  unlimited 


68  BENCH  AND  BAR  OF  TEXAS. 

power  in  the  Republic.  He  held  this  position  one  year, 
and  then  devoted  his  energies  to  the  annexation  of  Texas 
to  the  American  Union,  of  which  he  was  one  of  the  first 
and  most  zealous  advocates.  He  was  elected  a  member 
of  the  Convention  of  1845,  which  framed  the  Constitution 
of  the  State,  and  was  unanimously  chosen  president  of  that 
body.  The  first  Legislature  of  the  State  elected  him  in 
March,  1846,  to  the  Senate  of  the  United  States,  in  which 
he  continued  to  serve  his  country  with  unswerving  fidelity 
and  pre-eminent  ability  to  the  time  of  his  death.  He  held 
a  proud  and  influential  position  in  the  Senate,  and  was  for 
several  terms  at  the  head  of  the  Committee  on  Postal 
Affairs.  It  is  said  that  the  President  offered  him  the 
position  of  Postmaster-General  and  he  declined  it.  During 
the  session  of  1855  he  was  president  j97'o  tern  of  the  Senate, 
and  discharged  the  duties  of  the  chair  with  a  dignity,  im- 
partiality and  ability  which  gained  for  him  the  most 
enviable  parliamentary  laurels,  and  deepened  the  respect 
in  which  he  was  held  by  the  members  of  that  august 
assembly.  He  was  one  of  the  most  popular  members  of 
the  Senate.  He  was  trusted,  honored  and  beloved  b}'^  all 
parties  ;  and  while  he  rarely  delivered  a  set  speech,  his 
quiet  and  unobtrusive  manners  and  unwearying  watchful- 
uess  of  the  interests  of  his  constituents  availed  them  more 
than  all  the  powers  of  oratory  could  have  achieved. 

Judge  Rusk  was  exceedingly  social  and  domestic  in  his 
habits,  and  it  was,  perhaps,  this  fondness  for  the  retirement 
of  home  life  which  caused  him  so  often  to  resign  or  decline 
the  offices  of  honor  and  trust  which  were  offered  him  or 
conferred  upon  him.  He  was  warm  in  his  friendship,  and 
devoted  and  constant  in  his  attachments,  while  his  patriot- 
ism was  the  ruling  passion  of  his  life.  But  the  loss  of  his 
wife,  whom  he  married  in  Georgia,  and  who  had  shared 
with  him  all  the  vicissitudes  of  his  career,  induced  a  fatal 
despondency  which,  aided,  perhaps,  by  other  causes,  drove 
him  to  the  desperation  of  suicide,  and  he  died  by  his  own 
hands,  in  the  City  of  Washington,  in  1857. 


JOHN    HEMPHILL.  69 


JOHN  Hemphill. 


The  professional  minds  of  judges  and  lawyers  may  be 
divided  into  two  separate  and  distinct  classes,  which  may 
be  aptly  designated,  respectively,  the  perceptive  and  the 
memorative.  To  one  class  belong  those  whose  legal  knowl- 
edge  and  perception  depend  upon  memory,  and  are  subser- 
vient to  a  vague  medley  of  general  precedents  and  author- 
ities which  must  be  invoked  on  all  occasions  when  it 
becomes  necessary  to  grapple  with  great  and  important 
questions.  To  this  class  usually  belong  those  whose  powers 
of  perception  have  never  been  whetted  by  close  and  con- 
tinued application,  and  always  those  who  are  deficient  in 
t^e  organs  of  analysis  and  abstraction. 

The  other  class  comprises  those  who  depend  chiefly  upon 
their  own  conscious  resources,  who  combine  and  embody  the 
principles  of  law  with  their  own  perceptions,  and  mingle 
them  with  the  elements  of  their  own  judgment.  Like 
Lord  Thurlow,  they  care  not  so  much  "  how  a  case  was  de- 
cided, as  why  it  was  so  decided."  With  the  firstclassbath 
judgment  and  discernment  are  habitual  plagiarisms,  while 
with  the  other,  these  are  the  emanation  of  their  own  minds, 
and  they  speak  as  authorities  themselves.  The  decisions  of 
Chief  Justice  Marshall  required  no  authorities  to  support 
them;  and  these  judicial  qualities  eminently  fitted  the  sub- 
ject of  this  sketch  for  the  development  of  a  new  system  of 
laws  amid  circumstances  which  precluded  access  to  the 
trodden  fields  of  precedent.  His  long  career  upon  the 
bench  is  characterized  by  an  untiring  and  successful  eftoi  t 
to  harmonize  the  excerpted  elements  of  Texas  jurisprudencr 
and  endow  it  with  an  efiiciency  that  could  traverse  the 
scope  of  justice. 

Chief    Justice    John    Hemphill  was  a    native    of  South 


70  BENCH  AND  BAR  OF  TEXAS. 

Carolina,  and  was  a  descendent  of  one  of  the  early  settlers 
of  that  State.  He  was  educated  at  Jefferson  College,  in 
Pennsylvania,  from  which  he  graduated  in  182G,  and  im- 
mediately began  the  study  of  law.  He  immigrated  to 
Texas  at  an  early  period  of  its  history,  and  was  one  of  the 
district  judges  of  the  Republic.  He  was  an  astute  and 
erudite  lawyer,  and  had  attained  to  such  eminence  in  his 
profession  that  upon  the  resignation  of  Judge  Rusk,  in 
1840,  he  was  appointed  Chief  Justice  of  the  Texas  Repub- 
lic, but  resigned  in  1842  and  accepted  the  position  of 
adjutant-general,  and  accompanied  Gen.  Somerville  in  the 
unfortunate  Mier  expedition  to  capture  reprisals  for  Texans 
held  as  prisoners  in  Mexico.  He  was  a  zealous  advocate  of 
the  union  of  Texas  with  the  American  States,  and  was  a 
prominent  member  of  the  convention  of  1845,  which  adopted 
the  ordinance  of  annexation,  and  of  the  convention 
that  formed  the  State  Constitution.  In  1846  he  was  ap- 
pointed chief  justice  of  the  State  and  held  that  position 
until  1858,  when  he  was  elected  to  a  seat  in  the  United 
States  Senate. 

Judge  Hemphill  was  one  whom  nature  seems  to  have 
especially  designed  to  be  an  arbiter  of  the  affairs  of  men. 
He  possessed  great  candor,  and  a  stern  and  unbending  in- 
tegrity. An  acute  and  penetrating  discernment,  a  nice 
discrimination,  a  clear  perception  and  a  sound  judgment 
were  predominating  faculties  of  his  mind  ;  and  the  pursuit 
and  attainment  of  justice  afforded  him  the  highest  gratifi- 
cation. He  never  tired  in  the  evolution  of  legal  principles, 
and  never  failed  to  establish  an  equitable  adjustment  of  the 
most  complicated  circumstances.  It  was  said  of  Lord 
Hardwicke  that  he  had  an  intuitive  perception  of  the  law, 
and  Judge  Hemphill  possessed  this  rare  gift  to  an  eminent 
degree.  His  decisions,  which  extend  through  twenty-one 
volumes  of  the  Texas  Reports,  are  models  of  legal  elucida- 
tion, and  always  set  forth  in  a  clear  and  unmistakable 
light  the  relations  and  rights  of  the  parties.  His  powers  of 
analysis  and  amplification  were  peculiarly  adapted  to  the 
elimination  and  development  of  the  varied  issues  of  law, 
equity  and  fact,  often  presented  by  the  pleadings  under  the 


JOHN    HEMPHILL.  71 

system  which  obtain^i  in  the  Texas  courts.  His  conclusions 
are  never  arbitrary  or  sententious  ;  but  are  combinations  of 
pure  and  established  elements,  wrought  together  by  the 
gavel  of  justice,  and  deduced  along  clear  and  logical  paths, 
illuminated  by  the  light  of  reason  and  sound  judgment. 
He  was  fond  of  the  refined  and  beautiful  in  literature,  and 
his  decisions  often  glow  with  a  literary  polish  and  elegance 
rarely  found  in  the  dry  and  hackneyed  field  of  legal  diction. 

During  his  long  career  upon  the  Supreme  bench.  Judge 
Hemphill  established  many  eminent  precedents,  and  settled 
many  questions  which  had  been  held  in  conflict  in  the  older 
States.  He  was  one  of  the  most  learned  civilians  of  his 
time,  and  one  of  his  greatest  judicial  achievements  was  his  _i — 
success  in  harmonizing  the  common  and  civil-law  elements 
of  Texas  jurisprudence.  He  made  many  novel  applications 
of  principles  of  each  system  to  render  them  conformable  to 
our  polity  and  suitable  to  our  condition  and  the  state  of  our 
society.  But  he  had  a  strong  partiality  for  the  civil  law, 
and  during  the  debates  in  the  convention  of  1845,  upon  a 
clause  of  the  Constitution  allowing  trial  by  jury  in  all  cases, 
either  in  law  or  equity,  he  said  :  — 

"I  can  not  say  that  I  am  very  much  in  favor  of  either 
chancery  or  the  common-law  system.  I  should  much  have 
preferred  the  civil  law  to  have  continued  in  force  for  years 
to  come.  But  inasmuch  as  the  chancery  system,  together 
with  the  common  law,  has  been  saddled  upon  us,  the  ques- 
tion is  now,  whether  we  shall  keep  up  the  chancery  system 
or  blend  them  together.  If  we  intend  to  keep  it  up  as  it  is 
known  in  the  courts  of  England,  the  United  States,  and 
many  of  the  States,  and  in  the  United  States  courts  that 
will  be  established  here,  we  should  oppose  this  innovation  ; 
for  I  do  not  know  any  alteration  which  could  be  a  greater 
innovation  than  to  subject  all  chancery  cases  to  a  trial  by 
jury." 

He  was  never  married ;  yet  he  possessed  none  of  the  pe- 
culiarities usuall}^  belonging  to  those  who  grow  old  in  celi- 
bacy. He  was  a  champion  of  the  widow  and  the  orphan, 
a  staunch  advocate  and  protector  of  the  legal  rights  of  mar- 
ried women,  and  invariably  gave  to  the  laws  regarding  them 


72  BENCH  AND  BAR  OF  TEXAS. 

a  liberal  construction.  He  has  been  styled  in  one  of  the 
decisions  of  an  eminent  judge  the  great  champion  of  the 
homestead  rights  in  Texas,  and  his  decisions  in  regard  to 
exemption,  community  interests  and  marital  rights  embel- 
lish and  eminently  characterize  the  jurisprudence  of  the 
State.  He  thoroughly  understood  the  source  and  nature  of 
Texas  law.  His  opinions  have  rarely  been  disturbed  by  his 
successors,  and  they  will  always  be  quoted  as  high  au- 
thority. 

Judge  Hemphill  was  a  profound  student,  a  thorough  law- 
yer, a  good  man,  and  devoted  to  his  judicial  duties.  His 
habits  were  seclusive,  and  his  reserved  manners  sometimes 
gave  him  the  aspect  of  sternness.  Yet  he  possessed  a  gen- 
erous nature,  and  his  heart  was  aglow  with  tender  sympa- 
thies and  noble  impulses.  But  while  the  beneficence  of 
these  qualities  were  often  experienced  by  his  friends,  so 
eminent  was  his  judicial  character  that  it  may  be  said  of 
him,  as  Mr.  Erskine  once  said  of  Lord  Mansfield,  that  he 
was  "  that  great  and  venerable  magistrate  who  is  remem- 
bered only  with  the  impression  of  the  awful  form  and  figure 
of  justice." 

Judge  Hemphill  was .  thoroughly  Southern  in  his  senti- 
ments, and  his  career  in  the  United  States  Senate  was 
characterized  by  a  vigorous  advocacy  of  the  principles 
which  swayed  the  minds  of  the  Southern  people.  His  en- 
trance into  the  Senate  was  to  step  upon  a  plain  from 
which  he  could  observe  the  gathering  clouds  which  in  less 
than  two  years  were  to  lower  in  the  national  horizon. 
He  was  not  an  orator,  but  his  speeches  abound  with 
sound  logic,  and  always  present  a  stern  array  of  facts  in 
pure,  terse  and  incisive  language.  His  speech  on  the  right 
of  a  State  to  withdraw  from  the  Union,  delivered  in  the 
Senate  in  January,  1861',  is  a  superb  exhibition  of  these 
qualities.  In  this  speech  he  showed  that  Texas,  having 
been  an  independent  Republic,  which  had  taken  its  stand 
among  the  nations,  at  the  time  of  its  annexation,  would,  in 
withdrawing  from  the  Union,  only  resume  the  sovereignty 
and  independence  which  she  had  laid  aside  when  she  en- 
tered it.     He  scouted  the  charges  of  ingratitude  made  at 


JOHN    HEMPHILL.  73 

that  time  upon  Texas  in  view  of  her  threatened  secession, 
and  showed  that  the  State  was  in  no  way  responsible  for  the 
Mexican  war,  and  that  it  was  not  waged  by  the  United 
States  even  for  the  benefit  of  Texas. 

When  his  State  seceded.  Judge  Hemphill  retired  from 
the  United  States  Senate,  and  was  sent  as  a  delegate  to  the 
convention  at  Montgomery.  He  was  subsequently  elected 
to  a  seat  in  the  Confederate  Congress,  and  died  in  Richmond 
in  1862.  His  remains  were  brought  to  Austin  and  interred 
in  the  State  cemetery,  where  they  repose  by  the  side  of 
some  of  the  associates  of  his  long  Judicial  career,  while  his 
name  is  inscribed  in  letters  of  indelibility  upon  the  juris- 
prudence of  Texas,  where  it  will  receive  the  tribute  of  ven- 
eration as  long  as  the  voice  of  justice  shall  be  heard  in  the 
land. 


74  BENCH  AND  BAR  OF  TEXAS. 


ANDERSON   Hutchinson. 


Anderson  Hutchinson  was  a  native  of  Greenbrier  County, 
Virginia,  and  received  a  common-school  education,  most  of 
which  he  acquired  at  intervals  while  assisting  his  father  in 
his  office,  which  was  that  of  clerk  of  the  county  court. 
Here  he  also  acquired  some  practical  knowledge  of  legal 
forms  and  processes,  which  was,  no  doubt,  the  foundation 
of  those  habits  of  accuracy  and  that  expertness  in  the 
preparation  of  legal  documents  which  characterized  his 
practice  and  gained  him  success. 

On  reaching  the  age  of  manhood  Mr.  Hutchinson  emi- 
grated to  Knoxville,  Tennessee,  where  he  was  admitted  to 
the  bar,  and  soon  acquired  considerable  reputation.  This 
he  achieved  by  means  of  perseverance  and  a  vigorous  devo- 
tion to  his  profession,  as  well  as  by  the  native  faculties  of 
his  mind,  which  the  very  touch  of  learning  kindled  into  a 
flame  of  genius.  After  practicing  some  years  at  Knoxville 
he  removed  to  Huntsville,  Alabama,  and  there  encountered, 
with  increasing  reputation,  the  eminent  lawyers  of  that 
noted  bar.  He  then  removed  to  Mississippi,  and  estab- 
lished his  residence  in  the  town  of  Raymond,  in  Hinds 
County,  about  the  year  1835. 

In  1840  he  published,  in  conjunction  with  Volney  ^. 
Howard,  a  digest  of  the  laws  of  Mississippi,  for  which  the 
Legislature  allowed  him  $12,000,  purchasing  fifteen  hun- 
dred copies,  and  in  1848  he  published  his  Mississippi  Code. 
This  is  undoubtedly  a  work  of  great  merit,  and  required  an 
incalculable  amount  of  labor  as  well  as  great  ability  in  its 
preparation.  It  is  not  a  digest,  nor  revision,  nor  a  com- 
pilation of  the  statutes  at  large,  but  an  analytical  com- 
pendium, excluding  all  enactments  not  in  force  except 
those  which  are  necessary  to  explain  some  right  originating 
from  them,  or  requisite  for  affording  an  insight  into  existing 
statutes. 


ANDERSON    HUTCHINSON.  75 

The  plan  of  this  work  conforms  to  the  admirable  anal^'sis 
of  Bhickstone's  Commentaries,  and  in  its  arrangement  pre- 
sents a  striking  novelty  as  well  as  an  exhibition  of  marked 
ofenius.  It  gave  entire  satisfaction,  and  the  Legislature 
ordered  two  thousand  copies,  to  be  distributed  among  the 
officers  of  the  State. 

In  the  spring  of  1841  he  removed  to  Texas,  and  was  soon 
afterwards  appointed  one  of  the  district  judges,  who,  when 
sitting  in  banc,  composed  the  Supreme  Court  of  the  Ee- 
public.  In  this  capacity  he  acquired  an  exalted  reputation 
as  an  able  lawyer  and  a  man  of  integrity.  He  had  been 
but  a  short  time  upon  the  Texas  bench  when,  while  sitting 
on  the  trial  of  an  important  case  in  San  Antonio,  he  was 
captured  by  a  sudden  advance  of  the  Mexicans  under  Gen- 
eral Woll.  After  a  gallant  defense  by  the  citizens,  in  w^hich 
he  actively  participated,  the  advance  guard  of  the  Mexican 
invading  army  broke  into  the  town,  captured  the  court- 
house and  carried  away  the  judges  and  other  officers  of  the 
court,  as  prisoners,  to  the  castle  of  Perote.  Here  he  was 
closely  confined  and  subjected  to  great  hardships ;  but, 
through  the  influence  of  the  celebrated  Waddy  Thompson, 
at  that  time  the  American  Minister  at  the  City  of  Mexico,  he 
was  released  in  1843,  and,  returning  to  Mississippi,  renewed 
his  practice  in  co-partnership  with  Henry  S.  Foote. 

As  a  lawyer,  Judge  Hutchinson  owed  his  success  and 
celebrity  more  perhaps  to  an  accurate  and  laborious  prep- 
aration of  his  cases  than  to  any  pre-eminent  feature  of 
ability.  He  was  deeply  read  in  the  law,  and  by  application 
and  indefatigable  industry  availed  himself  fully  of  his  ex- 
tensive knowledge  and  resources.  The  accuracy  of  his 
pleadings,  his  uniform  urbanity  and  simplicity  of  manners, 
his  fidelity  to  his  clients,  and  the  force  of  character  which 
he  brought  to  bear  upon  a  cause,  all  contributed  to  his 
great  popularity  and  success.  He  possessed  an  extraor- 
dinary degree  of  promptness,  decision  and  energy,  which, 
with  a  sincere  kindness  of  heart  and  love  of  justice,  enlisted 
for  him  a  confidence  which  no  power  could  shake  ;  and  he 
made  a  lasting  impression  upon  the  jurisprudence  of  both 
Mississippi  and  Texas.     He  died  in  the  year  1853. 


76  BENCH  AND  BAR  OF  TEXAS. 


R.  E.  B.  Baylor. 


This  pious  man  and  upright  judge  was  born  in  the  State 
of  Kentucky  during  the  year  1793;  but  in  early  life 
removed  to  Alabama,  studied  law,  and  was  admitted  to  the 
bar  of  that  State.  He  also  became  an  active  politician,  and 
represented  his  district  in  the  United  States  Congress.  In 
1839  he  emigrated  to  Texas  and  settled  in  Fayette  County, 
where  he  practiced  his  profession,  and,  being  also  a  minister 
of  the  gospel,  pursued  at  the  same  time,  the  duties  of  his 
clergical  functions.  He  was  soon  afterward  appointed 
district  judge,  and  was  one  of  the  judges  of  the  Supreme 
Court  of  the  Eepublic  from  1841  to  the  annexation  of 
Texas  to  the  Union.  He  was  re-appointed  to  the  bench  of 
the  State,  and  held  the  oJffice  of  district  judge  until  the 
feebleness  of  old  age  compelled  him  to  retire  from  the 
active  duties  of  prof essional  life. 

He  was  a  member  of  the  Convention  of  1845,  which 
framed  the  first  Constitution  of  the  State,  and  acted  a 
prominent  part  in  that  distinguished  assembly.  Though  a 
Baptist  clergyman,  he  favored  the  adoption  of  the  provision 
of  the  Constitution  excluding  ministers  of  the  gospel  from 
civil  office,  and  "  dedicating  them  to  God  and  the  care  of 
souls,"  and  upon  a  motion  being  made  and  supported  by 
Mr.  Henderson  and  others,  to  strike  out  the  excluding  clause, 
he  said:  "  I  think  the  clause  a  wholesome  and  wise  one.  I 
do  not  think  that  any  office  coming  directly  from  the  people 
ought  ever  to  be  filled  by  the  clergy  of  any  denomination. 
I  would  as  soon  see  a  woman  mingling  with  the  populace 
at  large,  mounting  the  rostrum  and  making  stump  speeches, 
as  it  is  generally  called,  as  to  see  a  clergyman  engaged  in 
business  of  this  kind.  Sir,  the  good  and  pious  do  not  wish 
this  thing;    none    but  the  ambitious   desire   it,    and    they. 


K.  E.  B.   BAYLOR.  77 

before  all  others,  ought  to  be  excluded.  There  are  sectarian 
jealousies  and  heartburnings  enough  among;  the  various 
religious  denominations  of  every  country  ;  and  by  opening 
this  new  field  to  human  ambition,  you  will  only  make  the 
breach  between  the  different  sects  of  Christians  wider  than 
it  is  now.  I  think,  therefore,  that  the  section  ought  to  be 
retained.  A  great  deal  might  be  said  upon  the  suV)ject.  It 
seems  to  me,  further,  that  it  is  calculated  to  keep  clear  and 
well  defined  the  distinction  between  Church  and  State,  so 
essentially  necessary  to  human  liberty  and  happiness.  Sir, 
priests  and  kings,  the  former  of  every  denomination,  not 
the  Catholic  alone,  have  conspired  in  all  countries  and 
nations  to  enslave  mankind.  It  has  been  a  received  maxim  in 
Europe,  that  tlie  Idng  should  govern  the  priest,  and  the  priest 
the  people.  What  have  our  fathers  thought  upon  the  subject? 
In  many  of  the  State  Constitutions  the  clause  has  been 
inserted.  It  has  been  thought  wise  and  proper  by  their 
framers.  A  similar  feature  is  found  in  our  present  Con- 
stitution. In  conclusion,  I  have  neither  the  strength  nor 
the  ability  to  do  justice  to  the  subject;  I  therefore  simply 
say  that  I  hope  the  clause  will  be  retained  by  the  good 
sense  of  this  House." 

Judge  Baylor  was  a  good  lawyer  and  an  excellent  judge, 
and  his  pure  character  and  professional  qualifications  were 
exemplary  and  elevating  to  both  the  bar  and  the  bench  of 
his  time.  Some  of  his  decisions  are  reported  by  Mr. 
Dallam,  and  while,  like  those  of  his  associates  at  that 
period,  they  are  terse  and  seemingly  without  much  refer- 
ence to  precedents,  they  manifest  an  earnest  search  for 
truth,  and  a  conscientious  dispensation  of  justice.  He  died 
at  his  residence  near  Independence,  in  Washington  County, 
in  December,  1872,  and  the  Baptist  denomination  has 
perpetuated  his  name  and  memory  by  "  Baylor  University," 
named  in  his  honor. 


78  BENCH  AND  BAR  OF  TEXAS. 


RICHARD    MORRIS. 


The  subject  of  this  sketch  was  a  native  of  Virginia,  and 
was  born  in  Hanover  County  on  the  27th  of  December, 
1815.  His  father,  Richard  Morris,  was  a  gentleman  of  cul- 
ture and  a  lawyer  of  distinction,  and  for  many  years  prac- 
ticed his  profession,  with  much  success,  in  Hanover  and 
the  adjoining  counties.  But  having  inherited  an  ample 
fortune,  he  was  independent  of  the  remuneration  of  his 
practice,  and  never  gave  to  the  study  of  law  that  assiduity 
which  is  necessary  to  the  attainment  of  the  highest  profes- 
sional eminence.  While  he  had  but  little  taste  for  politics, 
and  sought  no  political  preferment,  he  was  a  man  of  great 
popularity,  and  was  elected  to  the  Legislature  when  he  was 
not  a  candidate  for  the  position.  He  was  also  elected  a 
member  of  the  Virginia  Convention  of  1829,  which  was 
convened  to  frame  a  new  Constitution  for  the  State,  and  in 
that  body  of  truly  great  men  he  performed  his  part  with 
credit  to  himself  and  his  constituents. 

At  the  age  of  fourteen  years  Richard  was  sent  to  the  cele- 
brated Burke  High  School,  in  Richmond,  to  be  prepared  for 
a  collegiate  course.  At  this  school,  which  was  at  that  time 
perhaps  the  most  noted  in  the  State,  he  remained  two  years, 
and  then  entered  the  University  of  Virginia.  Here  he  pur- 
sued an  academic  course  during  the  two  succeeding  years, 
and  then  began  the  study  of  law  in  the  office  of  his  father. 
In  the  fall  of  1835,  he  returned  to  the  University  and  pur- 
sued his  studies  in  the  law  department  one  session. 

In  1838,  having  obtained  his  license,  he  removed  to 
Texas  and  located  at  Houston,  where  he  commenced  the 
practice  of  his  profession.  He  soon  afterwards  formed  a 
copartnership  with  James  H.  Davis,  Esq.,  a  young  man 
who  had  just  graduated  in  both  the  academic  and  law  de- 


RICHARD    MORRIS.  79 

partments  of  the  University  of  Virginia.  They  began  their 
professional  career  under  the  most  favorable  auspices,  and 
with  the  brightest  prospects,  but  their  copartnership  was 
soon  dissolved  by  the  death  of  Mr.  Davis,  which  occurred 
in  the  summer  of  1840. 

Soon  after  the  death  of  his  partner,  Mr.  Morris  changed 
his  residence  to  the  city  of  Galveston,  where  he  continued 
his  practice  alone  and  with  great  success.  So  rapid  was 
the  rise  of  his  reputation  that  before  he  was  twenty-six 
years  of  age  President  Lamar  voluntarily  appointed  him  to 
the  high  and  responsible  oflSce  of  judge  of  the  first  judicial 
district,  which  ex-officio  made  him  one  of  the  judges  of  the 
Supreme  Court  of  the  Republic. 

Ill  the  fall  of  1841,  soon  after  his  appointment  to  the 
bench,  Judge  Morris  married  Miss  Mary  Love,  of  Galves- 
ton, a  lady  highly  accomplished,  and  of  the  most  amiable 
qualities,  and  who  was  in  every  respect  worthy  of  her  hus- 
band. She  was  the  daughter  of  Hon  James  Love,  formerly 
a  representative  in  Congress  from  Kentucky,  and  after- 
wards a  member  of  the  Convention  of  1845,  which  formed 
the  first  Constitution  of  the  State  of  Texas.  He  was  sub- 
sequently judge  of  the  first  judicial  district,  and  then  of  the 
criminal  courts  of  the  Houston  and  Galveston  district. 

The  career  of  Judge  Morris  on  the  bench  was  able  and  ex- 
emplary. While  he  was  the  youngest  judge  within  the  Re- 
public, the  lawyers  who  practiced  before  him  were  soon 
convinced  of  the  wisdom  of  President  Lamar  in  appointing 
him  to  the  position.  In  the  trial  of  cases  he  listened  to 
both  sides  with  patience,  courtesy  and  respect,  and  no 
judge  ever  held  the  scales  of  justice  more  evenly.  He  dis- 
charged the  duties  of  this  office  nearly  four  years  to  the 
perfect  satisfaction  of  the  members  of  the  bar  and  of  the 
people,  and  appeals  were  rarely  taken  from  his  decisions. 

Judge  Morris  attended  three  sessions  of  the  Supreme 
Court  of  the  Republic,  at  that  time  held  by  the  district 
judges  sitting  in  banc,  and  some  of  his  decisions  and  opin- 
ions in  important  and  diflicult  cases  are  found  in  Dallam's 
Digest,  which  speak  for  themselves.  Of  these  the  most  im- 
portant are  :    Forbes,  Brooks  &  Co.  v.  Wm.  G.  Hill,  Dallam, 


80  BENCH  AND  BAR  OF  TEXAS. 

p.  486  ;  Allcorn,  Amclr.  v.  Sweeny,  i6.,  p.  494  ;  Taylor  v. 
Duncan,  lb.  514  ;  Walker  &  Walker  v.  McNiels  &  Calder,  lb. 
541 ;  Hamilton  v.  Black's  Admr.,  p.  586 ;  Morris  v.  McKin- 
ney,  p.  619,  and  Carr,  by  Monaghan,  guardian,  v.  Wellborn, 
p.  624. 

These  opinions  are  referred  to  mainly  to  show  that  they 
were  written  by  a  man  of  education  %nd  uprightness,  who 
had  studied  and  understood  the  principles  of  both  law  and 
equity.  They  also  show  the  highest  order  of  judgment, 
discretion  and  love  of  justice  in  applying  these  principles 
to  the  variety  of  difficult  cases  submitted  for  his  decision. 
No  lawyer  would  conclude  from  reading  his  opinions  that 
they  were  written  by  one  so  young  in  years.  The  verdancy 
of  his  youth  is  hidden  by  the  hoary  locks  of  wisdom.  It 
will  be  observed  that  there  was  never  a  dissent  from  his 
opinions,  but  a  uniform  concurrence  in  all  his  views. 

While  he  was  in  the  prime  of  his  usefulness  and  vigor 
that  fatal  besom  which  has  so  often  and  sorely  afflicted 
whole  communities  of  the  South,  swept  over  Galveston, 
and  in  his  twenty-ninth  year  Judge  Morris  fell  a  victim 
to  yellow  fever,  and  died  on  the  19th  of  August,  1844. 

It  may  be  truly  said  of  him  that  he  was  an  enlightened, 
able  and  impartial  judge.  Upon  the  bench  he  was  cour- 
teous, dignified  and  patient,  and  in  society  he  was  a  gentle- 
man of  refinement  and  polish.  He  was  an  ornament  to  the 
Texas  bench,  and  no  judge  ever  laid  aside  a  more  spotless 
and  unsullied  ermine. 


WILLIAJVI    B.   OCHILTREE.  81 


WILLIAM     B.    OCHILTREE. 


The  subject  of  this  sketch  was  born  in  Cumberland 
County,  North  Carolina,  on  the  18th  of  October,  1811. 
His  educational  advantages  were  slender,  and  he  removed 
when  quite  young  to  the  Territory  of  Florida,  thence  to 
Alabama,  where  he  was  admitted  to  the  bar,  and  entered 
upon  the  practice  of  his  profession.  In  1839  he  removed 
to  Texas,  and  settled  at  Nacogdoches,  where  he  soon 
acquired  a  large  practice. 

The  bar  of  Nacogdoches  was  at  that  time  noted  for  legal 
ability,  and  was  justly  regarded  as  one  of  the  most  distin- 
guished in  the  Southwest.  It  was  adorned  with  such 
professional  luminaries  as  Thomas  J.  Rusk,  A.  Pickney 
Henderson,  K.  L.  Anderson,  Royal  T.  "Wheeler,  O.  M. 
Roberts,  Thomas  J.  Jennings  and  others,  whose  genius 
elevated  and  embellished  the  jurisprudence  of  the  Repubhc 
and  State  ;  but  Mr.  Ochiltree  was  equal  to  the  requirements 
of  success,  and  to  the  severe  test  which  a  claim  to  eminence 
demanded,  and  was  soon  recognized  as  one  of  the  most 
skillful  and  logical,  as  well  as  one  of  the  most  learned 
advocates  at  the  bar.  While  he  was  deficient  in  general 
learning,  his  vigorous  mind  grasped  and  embraced  the 
subtleties  of  law  with  an  alacrity  and  comprehension  Avhich 
placed  him  in  the  first  rank  of  the  profession.  His  mind 
was  always  clear  and  ready,  and  his  statement  of  facts  was 
so  plain,  his  application  of  law  so  lucid,  that  no  ingenuity 
of  argument,  no  skill  of  abstraction  could  pervert  the 
meaning  or  obscure  his  position. 

In  1842  he  was  appointed  judge  of  the  fifth  district  of 
the  Republic,  which  made  him  ex-ojicio  one  of  the  judges 
of  the  Supreme  Court.  His  decisions  are  reported  by  Mr. 
6 


82  BENCH  AND  BAR  OF  TEXAS. 

Dallam,  and  though  rendered  at  that  early  day,  are  not 
without  interest,  especially  that  in  Titus  v.  Hardin,  and  in 
the  Republic  v.  the  famous  Monroe  Edwards. 

In  1844  Judge  Ochiltree  was  selected  by  President  Jones  as 
a  member  of  his  cabinet,  and  was  appointed  Secretary  of  the 
Treasury,  and  in  November,  1845,  was  transferred  to  the 
Attorney-Geneial's  office.  In  the  former  position  he 
gathered  the  knowledge  of  finance,  and  in  the  hitter,  his 
familiarity  with  criminal  jurisprudence,  which  made  him 
afterwards  distinguished  as  a  financier,  and  particularly  as 
a  successful  criminal  lawyer. 

Upon  the  annexation  of  Texas  to  the  United  States,  he 
was  elected  a  delegate  to  the  Convention  which  framed  the 
Constitution  of  the  State,  and  was  an  active  and  prominent 
member  of  that  body.  This  convention  was  composed  of 
the  ablest  men  of  Texas,  and  the  result  of  their  labors  is 
an  everlastino;  monument  of  their  wisdom.  The  Constitu- 
tion  with  which  the  new  State  was  launched  into  the  Union 
has  no  superior  in  statesmanship  in  the  history  of  organic 
law. 

After  the  adjournment  of  the  Convention  he  was  appointed 
judge  of  the  fifth  judicial  district,  but  soon  returned  to 
the  bar,  and  for  ten  years  devoted  himself  without  inter- 
ruption to  the  practice  of  his  profession.  His  practice  was 
extensive,  and  it  was  during  this  time  that  he  achieved  some 
of  his  greatest  professional  triumphs.  His  popularity  was 
great,  and  he  received  the  familiar  sobriquet  of  Buffalo 
Head,  which  was  given  him  in  consequence  of  the  peculiar 
formation  of  that  member,  which  was  remarkably  large 
and  encephalic,  indicating  intellectual  powers  of  the  highest 
order. 

In  1855  he  was  a  member  of  the  sixth  Legislature,  and 
was  one  of  the  most  able  and  conspicuous  members  of  the 
House.  He  was  chairman  of  the  judiciary  committee,  and 
his  speeches  upon  measures  affecting  the  public  debt  and 
the  public  lands  were  able  and  eloquent,  and  his  views 
chiefly  moulded  the  policy  of  the  State  in  regard  to  those 
questions.     His  speech  in  favor  of  the  civil-law  doctrine  of 


WILLIAM    B.   OCHILTREE.  83 

forced  heirship,  and  against  the  adoption  of  the  statute  of 
wills,  while  not  so  effective,  was  likewise  able  and  inter- 
esting. 

As  an  orator  Judge  Ochiltree  had  few  equals  at  the  Texas 
bar,  possessed  of  a  clear  and  stentorian  voice,  his  elocution 
was  vehement  and  impassioned  and  swept  the  field  of  debate 
like  a  resistless  tempest.  The  brilliant  flashes  of  his  genius 
and  the  sudden  outbursts  of  his  natural  eloquence  often 
surprised  and  confounded  his  opponents  and  charmed  his 
audience  into  a  sympathy  with  his  views  which  gained  him 
many  a  narrow  success,  both  at  the  bar  and  in  the  halls  of 
legislation. 

In  1859  he  removed  to  the  town  of  Marshall,  and  in  1861 
was  chosen  a  member  of  the  Convention  which  adopted  the 
ordinance  of  secession,  and  was  one  of  the  signers  of  that 
instrument.  He  was  elected  as  one  of  the  delegates  to  the 
Provisional  Congress  of  the  Confederate  States  at  Mont- 
gomery, and  his  ability  gave  him  great  influence  in  that 
distinguished  assembly.  When  hostilities  began  he  resigned 
his  seat  in  order  to  transfer  his  services  to  the  field,  and, 
returning  to  Texas,  soon  raised  a  regiment  of  infantry 
which  was  attached  to  Walker's  division,  and  which  he  led 
with  conspicuous  gallantry  ;  but  owing  to  ill  health  he  re- 
signed the  command  of  his  regiment  in  1863  and  returned 
to  his  home.  His  health  continued  to  decline,  and,  while, 
he  watched  the  progress  and  culmination  of  the  strife  with 
the  most  intense  interest  and  anxiety,  he  was  no  longer  able 
to  participate  in  public  aflViirs,  and  being  aware  of  the  fatal 
character  of  his  decline  he  devoted  his  time  to  settino-  his 
house  in  order,  became  a  member  of  the  Episcopal  Church 
and  died  in  the  faith  of  Christianity  at  Jefferson  on  the  27th 
of  December,  1867. 

Judge  Ochiltree  saAv  Texas  through  all  the  phases  of  her 
existence,  save  the  last.  He  had  seen  her  as  an  indepen- 
dent sovereign  nation,  as  a  prosperous  State  of  the  Union, 
as  a  gallant  member  of  the  Confederacy  and  as  a  conquered 
province,  degraded  by  military  rule,  and  it  is  a  pity  that  he 
did  not  live  to  see  her  risen  lite  Thebes  from  hea-  smould- 
ering ashes  and  clad  in  the  robes  of  a  new  prosperity. 


84  BENCH  AND  BAR  OF  TEXAS. 

The  public  services  of  Judge  Ochiltree  were  characterized 
by  a  patriotic  devotion  to  the  welfare  of  his  State,  and  his 
ability  and  fidelity  made  a  lasting  impression  upon  every 
sphere  of  his  public  duties,  and  elevated  every  position 
which  he  held.  During  a  period  of  thirty  years  his  name 
is  closely  connected  with  the  history  of  Texas,  and  she  will 
preserve  it  as  of  one  of  her  truest  and  most  useful  citizens. 

In  social  life  he  was  generous  and  kind,  courteous  and 
affable  in  his  demeanor  to  all  classes  and  attracted  the  regard 
of  all  who  approached  him.  He  was  greatly  beloved  by 
his  family,  esteemed  by  his  neighbors  and  universally 
reverenced  by  his  fellow-citizens. 


ABNER    SMITH   LIPSCOMB.  85 


Abner   smith   Lipscomb. 


This  great  and  good  man  was  born  in  Abbeville  District, 
South  Carolina,  on  the  10th  of  February,  1789.  His 
parents  were  natives  of  Virginia,  and  emigrated  to  South 
Carolina  prior  to  the  war  of  the  Revolution,  in  which  his 
father  bore  a  patriotic  part.  His  early  scholastic  advant- 
ages were  only  such  as  the  common  schools  of  that  period 
afforded.  He  studied  law  in  the  oflSce  of  John  C.  Calhoun, 
and  in  the  glare  of  his  tutorship  imbibed  those  beams  of 
greatness  which  kindled  the  fires  of  genius  that  after- 
ward blazed  along  his  own  pathway.  The  inspirations  of 
such  a  nursery  and  the  impressions  which  he  received  from 
the  master  mind  of  his  distinguished  preceptor,  blending 
with  the  impulses  of  ambition  and  natural  endowments, 
Avrought  into  the  plastic  mould  of  his  mind  qualities  which 
afterward  expanded  into  an  illustrative  type  of  true  great- 
ness. He  often  referred  to  the  beneficial  and  stamping  in- 
fluences of  his  early  associations,  and  cherished  with  just 
pride  the  memory  of  his  tutelage. 

In  1811,  having  obtained  his  license,  he  removed  to  St. 
Stephens,  on  the  Tombigbee  River,  in  Alabama,  and  entered 
upon  the  practice  of  his  profession.  His  energy,  fidelity 
and  integrity  soon  commanded  an  extensive  and  lucrative 
business,  while  his  steady  and  vigorous  application  gath- 
ered a  knowledge  of  law  which  destined  him  for  the  highest 
judicial  sphere.  He  was  married  iu  1813  to  Elizabeth 
Gains,  daughter  of  a  planter  residing  in  the  Mississippi 
Territory  ;  but  patroitism  shared  his  nature  more  largely 
than  the  sentiments  of  professional  devotion,  or  even  the 
tenderest  conjugal  affection,  and  he  soon  afterward  broke 
away  from  the  society  of  his  young  wife  and  the  emolu- 
ments of  his  practice  and  responded  to  a  call  for  troops  to 


86  BENCH  AND  BAR  OF  TEXAS. 

quell  the  hostile  demonstrations  of  the  Indian  tribes  along 
the  Southern  frontier,  excited  by  the  war  of  1812.  When 
quiet  was  restored  he  returned  to  St.  Stephens  and  resumed 
his  practice,  but  was  soon  called  again  into  public  service  of 
a  different  character,  in  which  he  spent  the  greater  portion 
of  his  after  life. 

He  had  been  a  member  of  the  Territorial  Legislature, 
and  upon  the  organization  of  the  State  government  in  1819, 
he  was  appointed,  when  but  thirty  years  of  age,  one  of  the 
circuit  judges,  who,  sitting  in  banc,  constituted  the  Supreme 
Court  of  Alabama.  In  1823  he  was  made  chief  justice  of 
the  State  and  held  that  position  eleven  years.  His  opinions 
are  presented  in  the  first  ten  volumes  of  Alabama  Reports. 

In  1835  he  resigned  his  seat  upon  the  bench  and  removed 
to  the  city  of  Mobile,  where  he  resumed  his  practice  and 
increased  the  high  reputation  which  he  had  already  achieved 
at  the  bar.  His  superb  social  qualities  and  congenial  dis- 
position made  him  popular  with  the  people.  He  had  always 
been  a  staunch  and  consistent  Democrat,  and  in  1838  was 
nominated  by  the  Democracy  of  Mobile  as  a  candidate  for 
the  Legislature  ;  and  so  great  were  his  personal  popularity 
and  the  weight  of  his  character  that  he  was  elected  over  the 
Whig  candidate,  notwithstanding  that  the  latter  party  had 
an  overwhelming  majority  in  the  city,  and  had  been  in  the 
ascendent  for  many  years. 

As  a  legislator,  his  long  experience  upon  the  bench,  his 
thorough  knowledge  of  the  law,  and  clear  perception  of  the 
defects  of  the  existing  system,  enabled  him  to  eftect  many 
measures  of  reform  in  Alabama  jurisprudence.  Through 
his  influence  the  common-law  system  of  pleading  was 
simplified  and  the  judicature  of  the  State  rendered  more 
uniform  and  expeditious. 

In  1839,  ])efore  the  expiration  of  his  term  in  the  Legis- 
lature, he  removed  to  Texas.  His  fame  as  a  lawyer  and 
jurist  had  preceded  him,  and  he  immediately  commanded  a 
large  practice.  He  at  first  resisted  all  attempts  to  draw 
him  into  public  life,  but  finally  consented  upon  the  earnest 
solicitations  of  President  Lamar  to  accept  the  post  of 
Secretary  of  State  under  his  administration.     He  warmly 


AB.NER    SMITH    LIPSCOMB.  87 

espoused  the  policy  of  annexing  Texas  to  the  Union,  and 
brought  all  his  influence  to  bear  upon  the  accomplishment  )^ 
of  that  object.  He  was  elected  a  member  of  the  Conven- 
tion of  1845,  and  introduced  the  resolutions  accepting  the 
terms  of  annexation  proposed  by  the  government  of  the 
United  States.  These  were  adopted,  and  the  convention 
proceeded  immediately  to  form  a  Constitution  for  the  new 
State.  Here  again  his  legal  knowledge  and  judicial  expe- 
rience enjibled  him  to  render  most  efficient  service  in  the 
construction  of  the  organic  law,  and  those  beneficent  pro- 
visions in  regard  to  homestead  exemptions  and  marital 
rights  which  adorn  the  Constitution  of  Texas,  and  which 
excite  universal  admiration,  are  largely  the  work  of  his 
genius  and  influence. 

The  merit  of  his  services  in  the  Convention  of  1845  was 
duly  recognized,  and  upon  the  adoption  of  the  Constitution 
by  the  people  in  1846,  he  was  appointed  by  Governor  Hen- 
derson one  of  the  judges  of  the  Supreme  Court  of  the 
State,  and  from  this  time  his  life  was  devoted  to  the  devel- 
opment of  Texas  jurisprudence.  He  held  the  position  of 
associate  justice  eleven  years,  and  until  the  time  of  his 
death,  which  occurred  at  Austin  during  the  session  of  the 
court,  on  the  30th  of  November,  1856. 

His  opinions  are  contained  in  the  first  seventeen  volumes 
of  Texas  Reports.  They  are  more  numerous  than  those  of 
either  of  his  associates,  and  settled  most  of  the  questions 
of  practice  which  arose  during  that  time  under  the  mixed 
system  which  obtains  in  the  Texas  courts. 

The  life  and  character  of  Judge  Lipscomb  are  kindling 
incentives  to  that  honorable  ambition  which  finds  its  satis- 
faction only  in  the  distinguished  performance  of  high  public 
trusts,  to  that  patriotism  which  derives  more  happiness 
from  the  faithful  discharge  of  public  duties  than  from  the 
attainments  of  the  most  coveted  private  ends,  and  to  that 
rectitude  which  finds  its  reward  in  the  commendation  of 
all  good  men,  and  in  the  smiles  of  Heaven  which  mirror 
themselves  upon  the  unruffled  surface  of  a  clear  conscience. 

When  such  men  die,  it  behooves  us  to  pause  and  contem- 
plate the  instructive  lessons  which  their  lives  have  inscribed 


88  BENCH  AND  BAR  OF  TEXAS. 

upon  the  great  chart  of  human  existence,  for  the  purpose 
of  paying  proper  reverence  to  their  memories,  and  to  catch 
the  noble  inspirations  which  continue  to  emanate  from  the 
tracks  of  departed  worth.  To  review  and  record  the  qual- 
ities of  one  who  has  reaped  the  highest  esteem  of  his 
fellow-citizens,  is  a  custom  which  finds  its  sanction  throuffh 
all  ages,  down  to  the  very  depths  of  antiquity,  and  to  which 
we  owe  the  preservation  of  the  great  lessons  of  virtue,  the 
landmarks  of  greatness,  and  the  beacons  of  fame  which 
have  given  light  to  the  generations  of  earth,  and  pointed 
mankind  to  a  higher  and  nobler  sphere. 
V  Hence,  to  cite  examples  of  the  different  features  of 
greatness  is  by  no  means  a  difficult  task,  but  to  analyze  and 
interpret  the  different  measures  and  varieties  of  qualities 
which  enter  into  its  composition  is  a  task  of  another  im- 
port, and  we  will  find  ourselves  met  by  insuperable  barriers 
at  the  very  threshold  of  the  investigation.  There  we  will 
find  Genius,  with  its  dazzling  train,  mocking  at  every  effort 
to  discover  its  source,  and  by  its  side  Wisdom,  peering  far 
beyond  the  superficial  scope  of  vulgar  gaze.  There  Honor's 
helmet  flashes  an  effulgence  which,  but  for  its  rarity,  would 
kindle  a  philanthropy  that  would  glorify  the  world  ;  and 
there  is  Charity,  distilling  its  soothing  drops  into  the  hearts 
of  the  unfortunate,  and  healing  the  festering  ulcers  of 
human  woes.  Memory  is  there  with  its  tablet  of  indelible 
inscriptions.  Perception  is  there  with  the  glare  of  its 
penetrating  glance  ;  and  there  is  Judgment,  with  the  staff 
of  reason  in  one  hand  and  the  plumb-line  of  justice  in  the 
other.  There  Virtue  marshals  her  white-robed  train,  while 
hallowed  Piety  reigns  the  sceptered  lord  of  all. 

What  pen  can  depict  the  characters  of  this  gorgeous 
court?  What  embassador  from  the  realms  of  metaphysics 
can  penetrate  its  secret  councils  and  describe  its  rivalries 
and  harmonies?  Surely,  we  must  retire  from  the  laby- 
rinthian  threshold  and  await  the  denoument  of  the  heralds  of 
action.  With  this  conviction  let  us  return  to  the  subject 
of  this  sketch,  and  confine  ourselves  to  the  contemplation 
of  qualities  whose  sources  we  may  not  invade. 

As  a  lawyer,  Judge  Lipscomb  possessed  every  quality  of 


ABNER    SMITH    LIPSCOMB.  89 

pre-eminence.  He  was  thorouojhly  familiar  with  the  funda- 
mental principles  of  law,  and  skilled  in  all  the  details  of  the 
profession.  It  was  the  study  of  his  life,  and  he  traced 
every  legal  principal  to  its  source.  He  loved  the  law  as 
the  grandest  edifice  ever  erected  by  the  mind  of  man,  and 
as  the  receptacle  into  which  has  flowed  the  wisdom  of  ages. 
He  recognized  the  truth  of  the  saying  of  Sir  Henry  Fin«h, 
that  "  the  sparks  of  all  the  soiences  in  the  world  are  raked 
up  in  the  ashes  of  the  law,"  and  he  adopted  the  maxim  of 
Lord  Kenyon,  that  melius  est  jpetere  fontes  quam  sectari 
vivos  (it  is  better  to  seek  the  fountains  than  to  intercept  the 
streams).  Onthebenchthecareerof  Judge  Lipscomb  would 
have  adorned  the  ermine  of  any  country,  and  in  any  age.  As 
conscientious  and  upright  as  Sir  Matthew  Hale,  he  possessed 
much  of  the  penetrating  vision  and  brilliant  perception  of 
Lord  Mansfield,  the  equitable  poise  of  Eldon  and  the  intui- 
tive judgment  of  Hardwicke.  His  decisions  are  delivered  in 
a  neat,  plain  and  lucid  manner.  His  style  is  pure  without 
ostentation,  his  sentences  forcible  without  verbosity,  and 
his  judgments  fixed  immovablv  upon  the  firm  foundations 
of  law.  His  quotations  of  authority  are  never  profuse, 
but  always  go  straight  to  the  point  of  issue.  While  he  had 
due  reverence  for  established  precedent,  he  took  care  to 
test  it  in  the  retort  of  his  own  logic,  and  to  pass  it  through 
the  crucible  of  his  own  judgment.  His  comprehensive  and 
acute  knowledge  of  general  principles  enabled  him  with  or 
without  precedent  to  apply  the  law  with  unerring  hand  to 
the  vindication  of  justice.  But  these  comments  may  be 
useless,  if  not  tedious  to  the  professional  reader.  The  de- 
cisions of  Judge  Lipscomb  speak  for  themselves.  They 
are  the  best  monuments  of  his  genius  ;  the  brightest  and 
most  durable  urn  of  his  greatness.  They  glare  with  im- 
mortal splendor  upon  the  pages  of  Texas  jurisprudence, 
and  to  them  let  the  professional  reader  address  himself  for 
the  great  lessons  which  they  teach — lessons  inculcating 
the  example  of  an  able  lawyer,  an  honest  man  and  a  learned 
and  upright  judge. 

Judge  Lipscomb  was  a  Christian,  both  in   faith  and  in 
manner  of  life,  and  as  a  biblical  scholar  he  had  few  supe- 


90  BENCH  AND  BAR  OF  TEXAS. 

riors.  He  delighted  in  social  intercourse,  and  his  gentle 
and  QOTceable  manners  and  instructive  conversation  made 
him  a  welcome  guest  in  every  circle.  If  his  countenance 
sometimes  wore  an  expression  of  gravity,  it  was  but  the  re- 
flection of  intense  thought,  and  was  dispersed  at  the  least 
interruption  of  his  meditations.  He  was  a  man  of  warm 
attachments  and  tender  sympathies.  He  was  twice  mar- 
ried. He  lost  his  first  wife  in  1841,  and  in  1843  was  mar- 
ried to  Mary  P.  Bullock,  daughter  of  Dr.  Thomas  Hunt,  of 
Austin,  who  survived  him. 

The  home  circle  was  to  him  an  altar  of  pure  devotion, 
from  which  continually  arose  the  incense  of  domestic  fe- 
licity. Hospitality  and  charity  were  among  his  most  prom- 
inent qualities,  and  the  best  side  of  his  character  was  turned 
away  from  public  gaze.  While  these  may  perish  with  the 
hearts  which  they  warmed  and  with  the  memories  upon 
which  they  were  inscribed,  the  legislative  and  judicial  rec- 
ords of  two  great  States  beai-  everlasting  testimony  to  his 
patriotism  as  a  citizen,  his  ability  as  a  judge,  and  his  worth 
as  a  man. 

«« Fruits  of  a  genial  morn  and  glorious  noou.. 
The  deathless  parts  of  one  who  died  too  soon." 


^ 


EOYAL   T.  WHEELER.  91 


ROYAL     T.     WHEELER. 


Chief  Justice  Wheeler  was  born  in  the  State  of  Vermont 
in  1810.  While  young  he  removed  with  his  father's  family 
to  Ohio,  and  there  obtained  a  respectable  education  and 
prepared  himself  for  the  bar.  Having  obtained  his  license 
and  being  thrown  upon  his  own  resources,  he  emigrated 
in  1837  to  Fayetteville,  Arkansas,  and  became  the  partner 
of  William  S.  Oldham,  who  was  subsequentl}^  a  judge  of 
the  Supreme  Court  of  that  State,  and  a  Senator  from  Texas 
in  the  Confederate  Congress.  In  1839  he  was  married  to 
Miss  Emily  Walker,  an  accomplished  young  lady  of  Fay- 
etteville, and  soon  afterwards  removed  to  Nacogdoches,  in 
Texas,  and  formed  a  law  copartnership  with  Keudreth  L. 
Anderson,  the  Vice-President  of  the  Eepublic.  In  1842 
he  was  elected  district  attornev,  and  in  1844  was  promoted 
to  the  district  bench,  which  made  him  also  a  judge  of  the 
Supreme  Court,  as  that  was  then  composed  of  the  district 
iudo;es  sittino;  in  banc. 

When  the  State  government  was  organized,  in  1845,  the 
sagacity  of  Governor  Henderson  discerned  the  ability  and 
merit  of  the  young  jurist,  and  he  was  appointed  one  of  the 
associate  justices  of  the  Supreme  Court,  and  in  1851  Avas 
elected  to  the  same  position  by  the  people.  In  consequence 
of  an  increase  in  the  salaries  of  the  judges  in  1856,  he  re- 
signed, in  company  with  his  associates,  and  was  re-elected 
under  the  new  system  of  emoluments  ;  and  upon  the  resig- 
nation of  Chief  Justice  Hemphill,  in  1838.  to  accept  a  seat 
in  the  United  States  Senate,  Judge  Wheeler  was  chosen 
chief  justice  of  the  Supreme  Court,  and  held  that  position 
with  distiniruished  ability  until  the  time  of  his  death,  which 
occurred  in  Washington  County,  Texas,  in  the  spring  of 
18(i4. 


? 


92  BENCH  AND  BAR  OF  TEXAS. 

As  a  lawyer  Judge  Wheeler  was  thoroughly  versed  in 
the  learning  of  his  profession.  He  was  a  close,  attentive 
and  apt  student,  and  his  knowledge  was  rooted  in  the  very 
depths  of  the  science,  while  the  natural  bent  and  quality  of 
his  mind  led  to  a  comprehension  of  the  minutest  features 
as  well  as  the  grandest  outlines  of  jurisprudence.  While 
at  the  bar  of  Arkansas  ha  had  made  himself  an  efficient 
special  pleader  under  the  strict  S3''stem  of  the  common  law 
practiced  in  the  courts  of  that  State,  and  he  was  quick  to 
discover  the  points  upon  which  the  merits  of  a  case  hinged. 
His  mind  was  too  matter  of  fact  in  its  bent  and  too  exact- 
ing in  its  candor  to  indulo;e  in  the  mere  visions  of  imao;in- 
ation,  and  he  disdained  all  its  "  flower-decked  plats  and 
blooming  parterres."  He  was  not  distinguished  as  a  rhe- 
torician, but  he  knew  how  to  command  the  minds  and  hearts 
of  men,  and  had  great  power  before  a  jury.  These  quali- 
ties seemed  to  have  designed  him  especially  for  a  great 
criminal  lawyer,  and  his  knowledge  of  criminal  jurispru- 
dence was  pre-eminent.  His  mind  seemed  particularly  con- 
stituted for  sifting  and  weighing  the  circumstances  which 
form  the  qualities  of  guilt  and  the  varied  ingredients  of 
crime.  But,  notwithstanding  these  prominent  characteris- 
tics, so  full-orbed  and  luminous  were  his  legal  attainments 
that  it  is  difficult  to  assign  superiority  to  his  knowledge  in 
any  particular  department.  He  possessed  a  vigor  of  intel- 
lect, an  inquisitiveness  of  mind,  and  a  practicality  of  dis- 
position which  led  him  to  look  beyond  the  existence  of  the 
statute  to  an  inquiry  into  the  origin  and  reason  of  the  law, 
and  he  had  traced  the  principles  of  every  branch  to  their 
source. 

As  a  judge,  Chief  Justice  Wheeler  planted  himself  firml}^ 
upon  principles  and  fundamental  truths,  and  from  these  his 
mind,  armed  with  the  lance  of  acute  penetration,  clad  in 
the  mail  of  a  sound  judgment,  and  disciplined  by  a  severe 
training  and  correct  association,  penetrated  every  combina- 
tion of  circumstances  and  defied  every  challenge  of  emer- 
gency. He  detested  fallacy  and  showed  it  no  quarter, 
while  his  plain  logic  intersected  ambiguity  with  the  straight 
path  of  truth.     As  Sir  Richard  Steele   said   of  Lord  Chief 


ROYAL    T.  WHEELER.  93 

Justice  Holt,  *'  he  always  sat  in  triumph  over,  and  in  con- 
tempt of,  vice;  he  never  searched  for  it,  or  spared  it 
when  it  came  before  him.  At  the  same  time  he  could  see 
through  the  hypocrisy  and  disguise  of  those  who  have  no 
pretense  to  virtue  themselves,  but  by  their  severity  to  the 
vicious."  He  was  a  close  observer,  quick  to  read  the  hearts 
of  men,  to  interpret  their  motives  and  to  detect  the  springs 
of  human  action. 

These  accomplishments  can  not  be  said  to  be  the  work  of 
srenius,  for  Judg-e  Wheeler  was  not  thus  indebted  to  nature 
for  his  gifts.  They  were  the  fruits  of  unceasing  effort,  of 
vigorous  systematic  application,  a  rectitude  of  purpose  and 
a  determination  which  nothing  short  of  the  achievement  of 
the  highest  and  noblest  ends  could  satisfy.  He  commanded 
success  and  he  deserved  it. 

Judge  Wheeler  possessed  a  kind  and  amiable  disposition, 
and  souirht  the  attainment  of  iustice  bv  the  most  charitable 
means.  The  warp  of  his  justice  was  woofed  with  leniency, 
and  he  tempered  the  rigorous  requirements  of  law  with  the 
gentle  mandates  of  equity,  yet  his  vindication  of  right  and 
truth  was  always  prompt,  pronounced  and  unequivocal. 

His  professionnl  traits  were  fashioned  in  the  mould  of 
law,  his  moral  in  the  cast  of  rectitude.  The  simplicity  of 
his  virtues  admitted  no  vanity  or  affectation,  and  he  enjoyed 
with  like  modesty  the  honors  of  his  high  office  and  the  venera- 
tion of  society  ;  and  while  he  was  capable  of  strong  prejudices 
when  quickened  by  perverse  opposition,  a  habitually  serene 
temper  asserted  the  benevolence  of  his  nature.  The  quali- 
ties of  his  heart  were  not  strained  but  flowed  in  ijushinor 
torrents  from  deep  and  unfailing  fountains,  and  their 
exercise  found  among  his  friends  and  associates  a  rejiprocity 
which  but  intensified  their  character. 

The  venerable  Judge  Kobert  S.  Walker,  a  long  and 
intimate  acquaintance  of  Judge  Wheeler,  speaks  of  his 
private  character  in  the  following  graphic  terms  :  — 

*'  Judffe  Wheeler  was  a  man  of  a  sino-ularl v  rare  combina- 
tion  of  character.  His  presence  was  benign,  and  his 
manner  frank  and  open,  inviting  approach,  and  cordial  and 


f 


94  BENCH  AND  BAR  OF  TEXAS. 

affable  to  all,  but  it  forbade  coarseness,  levity  or  undue 
familiarity. 

"  He  carried  about  him  an  atmosphere  of  purity  and  culture 
so  marked  in  his  countenance  and  conversation  that  it  was 
felt  as  a  living  jDresence.  In  his  intercourse  he  was  free 
and  congenial ;  his  conversation  was  full  of  variety  and 
interest,  and  free  from  frivolity;  and  he  was  always 
severely  independent  and  sincere  in  the  expression  of  his 
sentiments.  He  never  allowed  the  forms  of  politeness  or 
silence  on  his  part  to  be  construed  as  an  apparent  indorse- 
ment or  seeming  approval  of  a  sentiment  that  was  false  in 
morals,  but  he  never  failed  to  leave  the  impression  of  his 
unequivocal  opinion  as  to  the  right  and  the  truth.  His 
warm,  confiding  social  qualities  drew  around  him  a  wide 
circle  of  devoted  friends  composed  of  the  purest  and  best 
of  all  classes  and  professions.  He  never  pursued  the 
acquirement  of  wealth,  nor  sought  influence  for  the  purpose 
of  advancing  himself.  He  coveted  neither.  His  aspirations 
were  far  above  the  former,  and  his  ambition  was  too  hio-h 
to  be  gratified  through  the  agency  of  the  latter.  Success 
with  him  was  nothing,  if  not  achieved  by  merit  rather  than 
by  the  doubtful  schemes  of  contrivance." 

The  decisions  of  Judge  Wheeler  extend  through  twenty- 
six  volumes  of  Texas  Reports,  and  are  characterized  by  a 
profound  knowledge  of  law,  a  thorough  comprehension  of 
the  facts  in  all  their  legal  bearings,  and  by  an  exposition  of 
legal  principles,  so  lucid  and  logical  that  his  views  readily 
receive  the  homage  of  assent  and  satisfaction.  His  style 
is  strong,  vigorous  and  dignified  without  any  e:ffort  at 
ornation  or  embellishment,  or  seeming  choice  of  expression, 
except  to  convey  his  ideas  in  the  most  forcible  and  cogent 
manner;  and  his  opinions  notably  avoid  the  expression  of 
mere  dicta  which  affirm  no  principle  authoritatively,  and 
tend  onlv  to  confuse  and  mislead  the  mind  of  the  youns: 
practitioner. 

While  stern  and  unyielding  in  his  views,  he  was  averse  to 
disputation,  and  maintained  a  respectful  deference  to  those 
of    his    associates.     His    pure   and    polished    professional 


ROYAL    T.  WHEELER,  95 

ethics  cemented  the  most  cordial  relations  between  himself 
and  the  other  members  of  the  bench  and  with  the  bar.  Mr. 
Justice  West,  an  eminent  judge  of  persons,  as  well  as  of 
the  law,  says:  "  During  his  long  career  upon  the  bench, 
Judge  Wheeler  frequently  differed  in  hio  opinions  from  the 
other  members  of  the  bench,  but  owing  to  a  constitutional 
sensitiveness  which  made  him  loth  to  controversy,  he,  on 
most  occasions,  contented  himself  with  directing  the  reporter 
to  note  his  dissent.  At  times,  however,  when  his  strong 
conviction  of  truth  and  justice  overcame  his  abhorrence  of 
debate,  he  would  advocate  his  views  in  a  dissenting  opinion, 
rich  in  legal  lore,  and  even  eloquent  in  the  vindication  of 
truth  against  what  he  conceived  to  be  the  errors  of  prece- 
dent. On  these  occasions  he  disclosed  that  beneath  his 
modest  and  unassuming  exterior  slept  an  iron  will  and  an 
inflexible  purpose,  which  nothing  could  swerve  from  the 
path  of  duty. 

In  these  struggles  he  more  than  once  arrested  the  current 
of  judicial  decisions,  which  by  legislative  enactments  were 
made  to  flow  in  the  channel  he  had  marked  out  as  the  true 
course  of  justice.  His  dissenting  opinions  in  Coles  v.  Kel- 
sey,  24  Texas;  Sylvanus  v.  AValker,  3  Texas;  Snoddy  v. 
Cage,  5  Texas,  form  epochs  in  our  judicial  history." 

In  politics  Judge  Wheeler  was  imbued  with  the  principles 
of  the  old  Whig  party.  He  was,  however,  a  warm  advo- 
cate of  annexation,  and  in  1861  ardently  espoused  the 
policy  of  secession  as  the  only  alternative  that  afforded  any 
hope  for  the  South.  His  mind  was  naturally  inclined  to 
the  forebodings  of  melancholy,  which  had  been  increased  by 
long  and  intense  mental  labor,  and  contemplating  the  clouds 
which  hung  over  the  future  of  his  country  and  the  pros- 
pects of  his  family,  to  which  he  was  devoted,  he  yielded  to 
the  influences  of  despair. 

It  has  been  said  that  all  great  passions  are  born  in  soli- 
tude and  nourished  in  retirement ;  and  that  they  are  tamed 
and  degraded  by  the  common  intercourse  of  society,  and 
utterly  lost  and  extinguished  in  public  companies,  crowds, 
and  assemblies  ;  but  in  the  instance  of  Judge  Wheeler  we 


{ 


96  BENCH  AND  BAR  OF  TEXAS. 

have  a  brilliant  light,  kindled  in  the  blaze  of  the  forum, 
shining  with  resplendent  glare  upon  the  bench,  and  shed- 
ding its  beacon  light  upon  all  the  affairs  of  men,  waning 
away  and  extinguishing  itself  in  the  damp  of  despair  —  the 
noblest  intellect  mouldering  in  the  rust  of  inaction  and  the 
canker  of  despondency.  Judge  Wheeler,  in  a  fit  of  mental 
aberration  died  by  his  own  hands  ;  but  the  jurisprudence 
of  Texas  embalms  his  ability  and  his  virtues  in  the  golden 
urn  of  everlasting  remembrance  and  veneration. 


GEORGE   F.  MOORE.  97 


GEORGE    F.    MOORE. 


George  Fleming  Moore,  for  many  years  chief  justice  of 
the  Supreme  Court  of  Texas,  was  born  in  Elbert  County, 
Georgia,  on  the  17th  day  of  July,  1822,  and  was  the 
seventh  son  of  his  parents.  "While  he  was  young  his  father 
removed  his  family  to  Alabama,  and,  being  a  prosperous 
planter,  placed  George  in  the  University  of  that  State,  and 
subsequently  sent  him  to  the  University  of  Virginia ;  but 
he  was  not  a  graduate  of  either.  In  1842  young  Moore 
began  the  study  of  law  at  Talladega,  and  in  1844  obtained 
his  license  and  entered  upon  the  practice  of  his  profession. 
Being  now  dependent  entirely  upon  his  own  resources,  his 
ambition  sought  a  more  propitious  field,  and  in  1846,  being 
attracted  by  the  glittering  prospects  of  the  new  State,  he 
removed  to  Texas  and  located  at  Crockett,  where  he  found 
an  ample  scope  for  his  genius  and  energy  in  the  practice  of 
a  new  and  undeveloped  system  and  in  its  application  to  the 
rapid  growth  of  the  country.  He  soon  attained  a  promi- 
nent position  at  the  bar,  and  in  1854,  allured  by  the  large 
legal  business  which  centered  at  the  State  capital,  he  re- 
moved his  office  to  Austin,  but  a  year  or  two  afterward 
settled  at  Nacogdoches,  as  the  law  partner  of  Richard  S. 
Walker,  and  the  firm  became  one  of  the  most  noted  in  the 
State. 

In  1858  Messrs.  Moore  &  Walker  received  the  appoint- 
ment of  State  Reporters,  and  prepared  the  twenty- 
>econd,  twent3'^-third  and  twenty-fourth  Texas  Reports, 
which  have  been  made  by  statute  models  for  all  sub- 
sequent issues.  During  the  civil  war  Mr.  Moore 
served  as  colonel  of  the  Seventeenth  Regiment  of  Texas 
cavalry ;  but  on  being  elected  in  18(52  an  associate 
justice  of  the  Supreme  Court,  he  resigned  his  office  in  the 


98  BENCH  AND  BAR  OF  TEXAS. 

army  and  accepted  the  position.  When  the  reconstruction 
era  of  President  Johnson  began  in  1866,  he  was  again 
elected  to  the  Supreme  bench  and  was  made  chief  justice 
of  the  State ;  but  upon  the  abrogation  and  overthrow  of 
the  re-union  policy  of  the  President  by  the  Federal  Con- 
gress in  1867,  he  was  removed  from  office  by  a  supreme 
military  authority,  which  swept  away  every  function  of  re- 
turnins:  concord  from  the  South  as  being  an  obstruction  to 
the  schemes  of  the  Republican  party. 

Judo;e  Moore  had  maintained  throuo-hout  the  war  a 
staunch  and  dignified  position  in  support  of  civil  supremacy 
and  judicial  authority,  and  in  1864  engaged  in  a  conflict 
with  the  military  power,  which  exalted  his  character,  both 
as  a  judge  and  a  patriot.  He  had  issued  writs  of  habeas 
corpus  for  the  production  of  some  citizens  who  were  held 
in  military  custody,  and  doomed  as  sacrificial  examples. 
These  writs  had  been  disregarded,  and  rising  to  the  full 
height  of  judicial  dignity  and  manly  opposition  to  that 
which  he  considered  an  unwarrantable  outrage  upon  the 
dearest  and  most  sacred  rights  of  a  citizen,  he  declared  his 
opinion  in  the  State  v.  Sparks,  et  al.,  27  Texas,  in  terms 
of  such  scathing  reprimand  that  the  military  authorities 
yielded  obedience  to  his  mandates,  and  the  citizens  were 
saved. 

From  the  time  of  his  removal  from  office  in  1867  until 
1874  he  practiced  his  profession  in  Austin ;  and  Avhen  the 
people  in  1874  resumed  control  of  the  State  government, 
which  had  been  taken  from  them  and  supplanted  by  an 
odious  military  rule  seven  years  before,  he  was  again 
appointed  associate  justice  of  the  Supreme  Court,  and 
upon  the  adoption  of  the  Constitution  of  1876,  he  was 
elected  to  the  same  position  by  the  people.  On  the  resig- 
nation of  Chief  Justice  Roberts  in  1878,  Judge  Moore  was 
appointed  by  the  Governor  as  his  successor,  and  was  soon 
afterwards  elected  chief  justice  of  the  State  by  more  than 
one  hundred  thousand  majority  of  the  popular  vote,  and 
held  this  position  until  1881,  when,  in  consequence  of  ill 
health  and  impaired  eye-sight,  he  resigned,  and  sought  that 
repose  from  his  long  and  irksome  labors,  so  sweet  to  those. 


GEORGE   F.  MOORE.  99 

who,  full   of  honors  and  full  of  years  retire  from  a. long 
public  service  with  a  mind  conscious  of  duty  wellperformd. 

In  contemplating  the  character  of  Judge  Moore  we  are 
dazzled  by  the  uniformity  and  constancy  of  its  glow. 
There  are  no  jetting  traits  to  serve  as  landmarks  to  the 
analysis.  There  are  no  conspicuous  planets  or  brilliant 
constellations  to  arrest  our  o-aze  ;  no  glowingr  meteors  flash 
along  the  sky ;  no  auroras  or  milky  ways  usurp  broad 
tracks  in  the  firmament ;  but  the  whole  canopy,  from  the 
zenith  to  the  horizon  blazes  with  one  common,  uniform 
light,  such  as  flows  from  the  full,  round  orb  of  day.  The 
qualities  of  his  head  and  heart  were  in  such  constant  and 
exact  equipoise  that  it  is  difiicult  to  determine  which  was 
the  most  vigorous  of  his  virtues,  or  what  was  the  chief 
mainspring  of  his  action.  No  particular  faculty  of  his  mind 
seemed  to  claim  superiority  or  assert  predominance  ;  and, 
as  an  advocate,  if  there  was  one  trait  which  miglit  be  desig- 
nated as  the  key  to  his  success,  it  was  the  ca[)acity  of 
making  a  lucid  presentation  of  his  case  —  for  presenting  a 
concise,  synthetical  summation  of  facts,  a  forcible  and 
convincing  application  of  the  law,  for  disrobing  his  adver- 
sary of  all  false  colors  and  superficiality,  and  whittling  the 
question  down  to  the  very  hinge  of  fact  and  gist  of  legal 
merit.  He  possessed  a  keen  perception,  and  his  mind  was 
disciplined  by  habits  of  correct  association.  His  powers 
of  analysis  and  abstraction  were  of  a  high  order,  and  no 
complexity  of  law  or  complication  of  fact  woven  of  the 
the  warp  and  web  of  circumstances  or  artifice  could  escape, 
the  glare  of  his  penetration.  He  prepared  his  cases  with 
great  care,  and  fortified  himself  at  every  possible  point  of 
attack. 

On  his  first  appearance  at  the  bar  of  Texas,  he  was  noted 
for  his  sedate,  dignified  manner  and  studious  habits.  Free 
from  the  frivolities  and  indiscretions  which  usually  attend 
one  of  his  age  and  conscious  powers,  he  steadily  pursued 
the  path  of  success,  and  his  conduct  was  early  impressed 
with  the  mould  of  experience.  His  energy  was  indomita- 
ble and  his  determination  undaunted  by  any  obstacle  which 
untoward  circumstance  could  throw  in  his  pathway.     Cer- 


100  BENCH  AND  BAR  OF  TEXAS. 

tainty  followed  in  the  track  of  his  virtues,  and  he  cliixibed 
with  a  sure-footed  pace  to  the  proud  height  of  his  profes- 
sional eminence. 

In  December,  1870,  he  was  licensed  to  practice  in  the 
Supreme  Court  of  the  United  States,  and  his  arguments  in 
Hanrick  v.  Barton  and  Cordova  v.  Hood  et  al.  before  that 
tribunal  are  replete  with  skillful  analysis  and  logical  pre- 
sentation. In  the  former  he  discussed  the  difference  be- 
tween the  Jus  in  re  and  the  jus  ad  rem,  and  the  distinction 
made  by  the  courts  in  respect  to  the  execution  of  deeds 
and  contracts  —  the  first  being  inoperative  until  completed 
and  consummated,  while  the  latter  create  obligations  which 
may  be  enforced  by  appropriate  judgment.  He  was  suc- 
cessful in  both  of  these  cases,  though  the  court  was  divided 
as  to  their  merits. 

Upon  the  bench,  Judge  Moore  was  a  Cato  of  integrity, 
an  Aristides  of  justice,  and  an  Eldon  of  equity  elucidation. 
He  was  perhaps  the  best  chancery  lawyer  that  had  sat  upon 
the  Texas  bench,  and  had  he  presided  in  courts  of  separate 
and  independent  chancery  jurisdiction  his  decisions  would 
not  have  disparaged  the  most  eminent  Lord  Chancellor  that 
ever  directed  the  impressions  of  the  great  seal,  but  would 
have  glowed  with  a  lustrous  purity,  doctrinal  soundness, 
and  logical  clearness  unsurpassed  by  the  most  luminous  de- 
crees of  Eldon,  Hardwicke  or  Lyndhurst. 

He  was  equally  eminent  for  his  thorough  knowledge  of 
the  intricate  system  of  Texas  land  laws,  and  during  the 
seven  years  he  was  excluded  from  the  bench  by  military 
power,  his  practice  in  land  cases  extended  throughout  the 
State.  His  decisions  upon  questions  arising  from  these 
laws,  upon  questions  of  official  responsibility,  and  his  dis- 
tinctions of  the  degrees  of  crime,  form  some  of  the  most 
important  features  of  Texas  jurisprudence.  While  he 
maintained  vigorously  and  successfully  the  sacred  right  of 
habeas  corjms  in  The  State  v.  Sparks,  he  also  upheld  in  ex 
■parte,  Coupland,  26  Texas,  the  constitutionality  of  conscrip- 
tion as  a  means  of  national  defense,  and  in  Keuchler  v. 
Wright,  40  Texas,  he  held  that  the  courts  could  issue  the 
writ  of  mandamus  to  the   heads  of  the  executive   depart- 


GEORGE    F.  MOORE.  101 

ment  of  the  State  government  to  compel  proper  perform- 
ance of  duty,  which  had  been  denied  by  a  majority  of  the 
court  in  the  case  of  Bledsoe,  Comptroller,  v.  The  Interna- 
tional Railroad  Company,  which  had  been  decided  at  the 
same  term.  His  definition  of  express  malice  in  Farrar  v. 
The  State,  42  Texas,  and  his  distinctions  as  to  what  consti- 
tutes murder  in  the  first  and  second  decrees,  are  said  to  have 
elicited  from  Mr.  Bishop  the  expression  that  they  were  the 
best  he  had  ever  seen.  His  dissenting  opinion  in  Hender- 
son V.  Beaton,  52  Texas,  in  regard  to  the  constitutionality 
and  construction  of  the  act  organizino-  the  Court  of  Com- 
mission  of  Appeals  presents  a  clear  view  of  the  character 
and  functions  of  that  court,  and  of  the  power  of  the  Legis- 
lature to  provide  means  for  the  dispensation  and  promotion 
of  justice. 

As  an  orator,  Judge  Moore  was  not  endowed  with  the 
highest  gifts  of  eloquence,  but  he  possessed  to  an  eminent 
decree  that  which  Demosthenes  declared  to  be  the  chief 
ingredient  of  eloquence.  He  possessed  ''action;"  not 
that  which  is  confined  to  gestures  of  the  limbs,  or  theatrical 
emotions  of  the  body,  but  that  action  which  indicates  the 
sentiments  with  which  w-e  are  inspired  and  impresses  them 
into  a  rule  of  conduct, — an  incentive  to  achievement, — a 
passion  for  duty,  which  engages  the  minds  and  convictions 
of  others  by  its  frankness  and  sincerity,  and  by  the  fer- 
vor of  conscientious  purpose.  He  w'as  eloquent  in  the 
depth  of  his  conviction,  in  the  earnestness  of  his  manner, 
in  the  logical  train  of  his  thoughts,  in  the  force  and  power 
of  his  language,  and  in  the  moral  mesmerism  of  the  man. 
His  arguments  were  always  clear,  logical  and  concise,  and 
his  oratory  was  more  like  a  torrent  which  sweep,  everything 
before  it  than  that  Ciceronian  gentleness  w^hich  glides  upon 
the  waves  of  conciliation.  He  depended  more  upon  the 
firm  rod  of  reason  than  upon  the  fickle  wand  of  suasion, 
and  gained  the  citadel  of  conviction  by  assault  direct  and 
full  in  front,  rather  than  b}^  the  crouching  maneuvers  and 
circuitous  paths  of  wile  or  allurement.  He  jjossessed  a 
keen  sense  of  honor,  and  was  open  and  generous  in  all  his 


102  BENCH  AND  BAR  OF  TEXAS. 

dealings,  punctilious  in  his  discharge  of  his  public  duties, 
resolute  in  the  prosecution  of  every  undertaking,  and  was 
all  that  Horace  meant  by  his  Justus  ef  tenax  propositi  vir. 

Judge  Moore  preserved  a  pure  and  courteous  professional 
ethics  and  a  dignified  judicial  decorum.  He  blended  in  an 
admirable  manner  the  stern  features  of  the  judge  with  the 
sympathetic  attributes  of  the  philanthropist.  He  was  par- 
ticularly kind  in  his  demeanor  towards  the  young  members 
of  the  bar,  and  was  always  ready  to  extend  to  them  a  help- 
ing hand.  His  domestic  and  social  qualities  were  as  amiable 
and  refined  as  his  public  and  professional  attributes  were 
brilliant  and  elevated.  He  was  married  in  Alabama  in  1849 
to  Miss  Susan  Spyker,  an  estimable  lady,  whose  qualities 
of  head  and  heart  eminently  fitted  her  to  be  the  companion 
of  her  accomplished  husband,  and  who  is  still  living  to 
cherish  the  memory  of  his  virtues.  He  died  on  the  30th  of 
August,  1883,  in  the  City  of  Washington,  where  he  was 
spending  the  summer  for  the  purpose  of  recuperating  his 
health,  which  had  been  for  some  time  feeble  and  precarious. 

It  is  peculiarly  sad  to  contemplate  the  death  of  a  man 
of  whom  it  is  universally  said  by  his  fellow-citizens  that 
he  died  too  soon.  But  it  is  to  the  loss  only  that  we 
should  confine  our  regrets ;  for  it  is  a  just  consolation  in 
contemplating  our  departure  from  this  world,  that  all  the 
great  and  the  good  die,  and  that  a  pathway  marked  by  the 
footsteps  of  the  Savior  of  mankind  and  trodden  by  count- 
less myriads  of  bright  and  shining  feet,  surely  can  not  be  a 
rough  and  unpleasant  path  ;  but  we  have  every  reason  to 
believe  that  death  is  but  the  curtain  of  life  dropped  behind 
us,  before  which  expand  the  realms  of  eternal  light.  When 
our  first  parents  beheld  the  setting  of  the  first  day's  sun, 
saw  it  leaving  them,  it  might  be,  forever,  and  beheld  the 
darkness  of  the  first  night  gathering  around  them,  with 
what  indescribable  wonder  and  dismal  forebodings  they 
may  have  gazed  upon  the  novel  scene.  But  as  it  grew 
darker  and  darker,  when  they  turned  their  eyes  upward, 
what  a  beautiful  panorama  gradually  unfolded  to  their 
view.     The  sun  was  gone,  but  lo  !  new-born  Cynthia  and 


GEORGE   F.  MOORE.  103 

the  beautiful  stars,  smiling  in  the  mirth  of  their  morning 
song.  If,  then,  night  can  reveal  such  beauty,  what  incon- 
ceivable glory  may  not  deck  the  canopy  of  death. 

These  reflections  are  awakened  by  the  contemplation  of 
the  death  of  him  who  forms  the  subject  of  this  sketch.  He 
walked  through  the  world  in  the  path  of  duty  and  conscious 
rectitude,  and  in  the  faith  of  piety,  down  to  the  brink  of 
the  valley,  and  when  he  stepped  forth  into  its  shadows,  he 
no  doubt  caught  the  promised  visions  which  flash  from  the 
blessing  of  the  faithful  servant. 


104  BENCH  AND  BAR  OF  TEXAS. 


A.  J.  Hamilton. 


Andrew  Jackson  Hamilton,  one  of  the  ablest  men  the 
Texas  bar  has  ever  produced,  was  born  in  Madison  County, 
Alabama,  on  the  28th  of  January,  1815,  and  was  admitted 
to  the  bar  of  that  State  in  1841.  His  educational  advan- 
tages were  the  best  that  the  schools  of  the  new  country 
afforded,  and  his  preparation  for  the  bar  was  inspired  by  a 
natural  genius  and  ambition. 

In  1846  he  emigrated  to  Texas,  and  located  at  Lagrange, 
where  he  attained  such  eminence  in  his  profession  that  in 
1849  he  was  appointed  by  Governor  Bell  attorney- 
general  of  the  State,  and  from  that  time  made  Austin 
his  permanent  residence.  He  served  as  the  represen- 
tative of  Travis  County  in  the  Legislature  of  1851, 
and  again  in  1853,  and  was  an  active  and  zealous  promoter 
of  all  measures  for  the  general  welfare  of  the  State.  In 
1856  he  was  an  elector  on  the  Buchanan  ticket,  and  in  1859 
was  elected  to  a  seat  in  the  United  States  Congress,  as  an 
independent  candidate,  in  opposition  to  General  T.  N. 
Waul,  the  regular  nominee  of  the  Democratic  party.  He 
was  a  strenuous  opponent  of  the  policy  of  secession,  which 
he  considered  impolitic  and  unjustifiable,  and  retained  his 
seat  in  Congress  after  the  other  members  from  the  seceded 
States  had  returned  to  their  constituencies.  He  returned 
to  Austin  in  the  latter  part  of  1861,  and  was  made  the 
Union  candidate  for  the  State  Senate,  to  which  he  was 
elected ;  but  Texas  had  now  cast  her  lot  with  the  Con- 
federacy, and  he  declined  to  take  the  required  oath  of 
qualification. 

In  1862,  being  still  opposed  to  the  purposes  and  progress 
of  the  war  on  the  part  of  the  South,  he  left  the  State,  and, 
making  his  way  through  Mexico,  repaired  to  the  City  of 


A.  J.  HAMILTON.  105 

Washington,  and  was  immediately  appointed  brigadier- 
general  of  the  Texas  troops  in  the  Union  service.  In  1865 
he  was  made  Provisional  Governor  of  Texas  by  President 
Johnson,  as  the  most  suitable  person  he  could  find  in  the 
State  to  effect  his  conservative  plan  of  reconstruction. 
Governor  Hamilton  entered  upon  the  duties  of  this  office 
with  an  ardent  desire  to  re-establish  as  easily  and  speedily 
as  possible  the  former  relations  of  the  State  to  the  Federal 
Union  ;  but  in  1866  he  was  appointed  an  associate  justice' 
of  the  Supreme  Court,  which  was  a  field  equally  compati- 
ble with  his  taste  and  talent.  He  was  still,  however,  deeply 
interested  in  the  method  and  manner  of  reunion,  and  was  a 
prominent  member  of  the  Reconstruction  Convention  of 
1868,  in  which  he  was  the  author  and  chief  promoter  of  the 
liberal  electoral  bill  and  franchise  measures,  which  were 
engrafted  in  the  new  Constitution,  In  1870  he  was  the 
Conservative  candidate  for  Governor,  but  was  defeated  by 
Judge  E.  J.  Davis,  the  Republican  nominee,  in  a  contest  so 
close  as  to  require  the  intervention  and  decision  of  the 
military  authorities.  Returning  now  to  the  seclusion  of 
})rivate  life,  he  eschewed  any  further  active  participation  in 
the  political  events  of  the  period,  and,  falling  into  a  de- 
cline of  health,  died  in  Austin  during  the  month  of 
April,  1875. 

Governor  Hamilton  was  a  man  of  great  ability  and  a  pro- 
found lawyer,  and  his  professional  career  was  remarkably 
successful.  He  was  naturally  endowed  with  uncommon 
powers  of  intellect,  and  his  knowledge  of  law  was  scientific 
and  thorouo;h.  His  manacrement  of  his  cases  was  method- 
ical  and  practical,  and  commanded  every  element  of  honor- 
able success.  While  he  embodied  all  the  eminent  qualities 
of  a  great  lawyer,  the  characterizing  features  of  his  emi- 
nence, taken  in  the  abstract,  were  asserted  in  a  correct 
judgment,  an  accurate  comprehension,  and  a  perception 
that  bordered  upon  intuition.  His  capacity  for  close  dis- 
criminations and  subtle  distinctions,  the  apt  and  forcible 
communication  of  his  ideas,  the  strength  of  his  logic,  the 
purity  and  simplicity  of  his  diction,  unfolded  the  most  ab- 
struse doctrines  and  lurking  points  to  the  view  and  under- 


106  BENCH  AND  BAR  OF  TEXAS. 

standing  of  common  sense,  while  the  depth  and  pathos  of 
his  convictions  and  the  candor  of  his  arguments  impressed 
his  opinions  upon  the  minds  of  the  most  obstinate  and  in- 
different. 

To  his  clients  he  was  a  faithful  friend  and  counselor  and 
deceived  them  with  no  apparitions  of  false  hopes  or  spe- 
cious inducements  to  unjust  and  fruitless  litigation.  But 
he  was  sincere  and  conscientious  in  his  dealings  with  them, 
and  they  trusted  him  with  an  implicit  faith. 

As  a  judge  of  the  Supreme  Court  he  brought  to  the 
bench  not  only  the  qualifications  of  a  thorough  lawyer,  but 
the  requisites  of  an  eminent  jurist.  His  decisions,  though 
comparatively  few,  are  noted  for  their  learning,  dignity  and 
force,  and  embrace  some  of  the  most  important  questions 
that  arose  during  that  unsettled  period  under  the  recon- 
struction laws.  Chief  among  these  is  his  opinion  upon  the 
question  of  ah  initio  rendered  in  1868  in  the  case  of  Luter 
V.  Hunter,  30  Texas,  690,  and  in  Culbreath  v.  Hunter,  30 
Texas,  712,  known  as  the  Sequestration  Cases  ;  in  which  he 
held  that  the  States  composing  the  Confederacy  occupied  a 
higher  ground  than  the  Confederate  government,  havinor 
been  in  their  origin  peaceful,  legitimate  and  constitutional ; 
that  they  continued  to  exist  notwithstanding  the  war  with- 
out a  hiatus  or  interregnum,  and  that  the  United  States 
government  had  not  interfered  with  the  mere  civil  laws  of 
the  States,  whether  enacted  before  or  during  the  war,  ex- 
cept as  to  such  laws  as  necessarily  resulted  from  the  war 
and  such  as  were  unconstitutional,  or  in  hostility  to  the 
United  States. 

It  would  have  been  well,  indeed,  for  the  interest  of  the 
whole  country,  if  the  doctrine  enunciated  in  these  cases  had 
been  accepted  by  the  dominant  party.  Ten  years  of  polit- 
ical chaos  and  stagnant  blank  in  the  historj'  of  the  South 
would  have  teemed  with  prosperity,  and  the  hostility  of 
the  heart  would  have  ceased  with  the  hostility  of  the 
sword. 

Governor  Hamilton  was  equally  gifted  as  a  politician,  and 
his  short  career  in  Congress  was  characterized  by  a  states- 
manship which  ordained  him  to  a  position  of  great  influence 


A.  J.  HAMILTON.  107 

and  usefulness  in  that  body,  had  the  star  of  Texas  retained 
its  peaceful  glitter  in  the  banner  of  the  Union.  He  was 
sensitive  of  the  wrongs  and  grievances  of  his  section,  and, 
while  he  acknowledged  that  revolution  was  justifiable  and 
proper  as  a  remedy  for  oppression,  he  differed  from  the 
great  majority  of  the  Southern  people  in  regard  to  the  right 
of  secession,  and  believed  that  the  constitution  was  the 
great  arbiter  and  palhidium  of  American  liberty,  and  that 
all  wrongs  could  be  adjusted  by  it  and  settled  within  the 
Union. 

He  contended  that  if  the  right  of  secession  existed  at  all, 
it  was  a  reserved  right,  and  that  reserved  rights  were  such 
as  existed  prior  to  the  formation  of  the  constitutional  com- 
pact ;  that  no  such  right  could  have  existed  anterior  to  the 
adoption  of  the  constitution,  and  that  every  right  was 
affirmatively  provided  for  in  that  compact  either  in  express 
or  general  terms. 

At  the  close  of  his  able  speech  on  the  state  of  the  Union 
delivered  in  the  House  of  Representatives  in  February,  1861, 
he  said  :  "  I  care  not  for  myself.  I  have  made  up  my 
mind  at  the  beginning  of  this  trouble  never  to  pause  in  my 
exertions  because  of  the  condition  in  which  it  would  place 
me  for  the  time  being,  either  here  or  at  home.  I  have  not 
allowed  one  single  motive  of  selfishness,  if  I  know  my  own 
heart,  ever  to  interfere  with  the  exercise  of  what  little  judg- 
ment I  have  been  able  to  bring  to  bear  upon  these  great 
questions.  I  am  solemnly  impressed,  however,  with  the 
condition  in  which  I  actually  find  myself.  In  traveling 
hither  from  my  home,  more  than  two  thousand  miles  dis- 
tant, my  foot  pressed  no  spot  of  foreign  territory.  My 
eye  rested  on  not  one  material  object  during  my  journey 
that  was  not  a  part  and  parcel  of  my  country,  as  I  fondly 
deemed  it.  When  we  assembled  together,  as  far  as  I  know, 
every  State  and  Territory  was  represented  upon  this  floor. 
The  great  fabric  of  the  government  was  then  complete ; 
but  now,  how  changed  !  When  I  go  home  it  will  be  to  find 
my  pathway  intercepted  by  new  nationalities.  Without 
ever  having  wandered  from  my  native  land,  I  must  traverse 
foreisn  countries  if  I  would  return. 


108  BENCH  AND  BAR  OF  TEXAS. 

"  I  might  be  excused  for  doubting  my  own  identity.  Surely 
I  may  be  pardoned  for  having  involuntarily  prayed  that 
this  might  be  a  troubled  and  protracted  dream.  Yet  it  is 
too  true  —  too  many  evidences  force  conviction  of  the  sad 
reality.  But  a  few  days  past,  the  noble  temple  of  American 
liberty  stood  complete  in  all  its  parts  —  stood  in  all  the 
majesty  of  its  vast  proportions,  and  in  the  glory  of  its 
apparent  strength  and  beauty  of  construction  ;  not  a  pillar 
missing  nor  a  joint  dissevered.  And  its  votaries  were 
gathered  about  the  altar,  worshiping,  as  was  their  wont, 
with  hopeful  hearts.  Forebodings  were  felt  and  predictions 
made  of  the  coming  storm,  ^nd  the  destruction  of  the 
temple.  And  the  storm  has  come,  and  still  rages;  the 
temple  still  stands,  but  shorn  of  its  fair  proportions  and 
marred  in  its  beauty.  Pillar  after  pillar  has  fallen  away. 
And  while  its  proud  dome  still  points  to  Heaven,  it  is 
reeling  in  mid-air  like  a  drunken  man  ;  while  its  founda- 
tions  are  shaken  as  with  an  earthquake.  Yet  there  are 
worshipers  about  the  shrine  —  and  I  am  one  of  them.  I 
have  been  called  by  warning  voices  to  come  out  and 
escape  the  impending  danger.  I  have  been  wooed  by 
entreaties  and  plied  with  threats.  But  neither  entreaties 
nor  threats,  nor  hope  of  reward  nor  dread  of  danger  shall 
tear  me  away  until  I  lay  hold  of  the  horns  of  the  altar  of 
my  country,  and  implore  Heaven,  in  its  own  good  time,  to 
still  this  storm  of  civil  strife  ;  and,  through  such  human 
agency  as  may  be  best,  again  uprear  the  fallen  pillars  to 
their  original  position,  that  they  may  through  long  ages 
contribute  to  the  strength  and  beauty  of  the  noblest  struc- 
ture yet  devised  by  man." 

These  were  his  abiding  sentiments,  and  while  he  may  not 
have  approved  of  the  harsh  measures  of  reconstruction 
forced  upon  the  South  by  the  Federal  Congress,  he  bent  all 
his  energies  to  fashion  the  affairs  of  Texas  in  the  mould  of 
Federal  requirement,  and  in  conformity  with  the  Constitu- 
tional amendments. 

He  did  not  think  that  the  great  mass  of  negroes  in  the 
South  were  qualified  to  exercise  the  right  of  suffrage,  l)ut 
he  thought  it   unwise   to  exclude  them  from  political  priv- 


A.  J.  HAMILTON.  109 

ileges  on  account  of  race  or  color.  Progress,  h©  said,  was 
the  great  law  of  mind  under  a  free  government,  and  he  did 
not  believe  that  any  policy  could  be  enduring  or  permanent 
in  this  country  which  was  based  upon  accidental  circum- 
stances and  the  traditions  of  prejudice,  instead  of  beino- 
founded  upon  the  eternal  principles  of  truth  and  justice. 

Governor  Hamilton  was  bold  and  fearless  in  the  advocacy 
of  his  principles,  and  in  the  execution  of  his  purposes; 
yet  he  was  modest  in  his  deportment,  and  kind  and 
courteous  in  his  bearing.  He  was  a  man  of  pure  morals, 
and  possessed  a  kind  disposition  and  charitable  heart.  In 
private  and  social  life  he  was  iiighly  esteemed  by  his  friends 
and  associates,  and  was  a  man  of  great  personal  popularity. 


110  BENCH  AND  UAU  OF  TEXAS. 


Lemuel  Dale  Evans. 


The  subject  of  this  sketch  was  born  in  the  State  of  Ten- 
nessee in  the  year  1810,  where  he  studied  law  and  was 
admitted  to  the  bar.  He  removed  to  Texas  in  1843  and 
settled  in  Fannin  County,  which  he  represented  in  the 
annexation  Convention  of  1845,  and  of  which  he  was  a 
prominent  member.  In  1855  he  was  elected  to  represent 
the  eastern  district  of  Texas  in  the  United  States  Congress. 
He  was  opposed  to  secession  and  during  the  war  adhered 
to  the  cause  of  the  Union :  but  took  an  active  part  in 
endeavorino;  to  restore  the  relations  of  Texas  to  the  Federal 
government  upon  the  basis  of  conservation  and  moderation, 
and  was  a  member  of  the  Reconstruction  Convention  of 
1868.  When  all  the  officers  chosen  by  the  people  were 
removed  by  military  authority,  he  was  appointed  in  1870 
chief  justice  of  the  Supreme  Court,  which  position  he  held 
until  the  expiration  of  his  term  in  1873.  In  1875  he  was 
appointed  United  States  marshal  at  Galveston  and  held  that 
office  until  the  time  of  his  death,  which  occurred  in  the  City 
of  Washington,  on  the  1st  of  July,  1877. 

In  the  Convention  of  1845,  when  the  fifteenth  section  of 
article  seven  of  the  Constitution  was  under  discussion, 
which  required  the  Legislature  to  provide  for  the  trial  of 
cases  by  arbitration,  upon  the  amendment  offered  by  Mr. 
Howard,  "when  the  parties  shall  elect  that  method  of 
trial,"  Mr.  Evans  said:  — 

<'  I  am  opposed  to  the  amendment  offered  by  the  gentle- 
man from  Bexar,  and  decidedly  in  favor  of  the  section  as  it 
now  stands.  I  have  contemplated  going  further;  as  I 
know,  however,  that  I  should  be  opposed,  I  have  made  up 
my  mind  to  be  content  with  voting  for  the  section  as  it  ♦ 
stands.  I  shall  not  assail  the  motives  of  lawyers  ;  but  they  are 


LEMUEL    DALE    EVANS.      •  111 

wedded  to  a  certain  system  of  settling  disputes,  by  which  they 
live,  and  draw  into  their  pockets  a  large  revenue  ;  and  per- 
haps they  can  not  view  the  question  in  its  proper  light. 
Now  I  do  not  want  to  excite  any  ridicule  against  myself,  but  I 
will  state  what  I  candidly  believe,  that  the  whole  contrivance 
of  courts  of  judicature  is  a  fraud  upon  the  community  ;  the 
whole  system  is  an  invention  of  the  darker  ages  of  the 
world  and  productive  of  the  greatest  injury.  I  take  this 
position,  that  there  is  no  question  of  right  or  wrong  which 
a  savage  is  not  as  competent  to  decide  as  the  ablest  judge 
m  the  land;  no  question  which  affects  the  rights  of  property 
or  the  person,  which  the  untutored  savage  can  not  deter- 
mine as  well  as  a  Story  or  a  Marshall.  And  why?  Because 
questions  of  right  and  wrong  depend  upon  feeling,  and  not 
upon  reason.  A  man  that  feels  right,  no  matter  how  un- 
cultivated his  mind  may  be,  is  as  good  a  judge  of  such 
matters  as  the  most  learned  men  that  ever  sat  upon  the 
bench.  If  this  were  not  the  case,  there  could  be  no  human 
responsibility  in  this  world  or  the  world  to  come.  I  will 
take  another  position:  that  any  man  who  teaches  your 
country  schools,  and  understands  the  common  laws  of 
syntax,  is  as  well  qualilBed  to  understand  the  constitu- 
tionality of  the  law  as  a  Daniel  Webster.  Why?  Because 
any  sentence  in  the  English  language,  whether  it  be  found 
in  a  law-book  or  in  the  Bible,  is  to  be  construed  according 
to  the  rules  of  grammar.  I  know  that  lawyers  have  a  way 
of  construing  the  former  for  themselves.  I  know  that  they 
have  their  particular  phrases,  and  words  with  peculiar 
meanings,  which  the  common  people  can  not  understand. 
And  here  is  the  fraud  of  the  whole  system.  Let  a  plain 
law  be  passed.  Say  the  lawyers,  no  man  can  write  a  law 
plain  enough  for  the  common  people  to  understand.  It  is 
referred  to  a  court  to  get  the  legal  meaning  of  its  terms  ; 
the  court  weighs  the  terms,  as  they  call  it,  and  settles  their 
meaning.  How  long  does  it  stay  so?  Until  they  can  gfet 
two  men  to  fall  out  about  the  decisions,  and  then  they  get 
a  court  to  decide  a  case  already  decided.  The  court  then 
enforces  the  decision,  or  overrules  it.  There  are  now 
twelve  hundred  overruled  cases  in   the  common  law.       The 


112  BENCH  AND  BAR  OF  TEXAS. 

world  can  not  contain  the  books  of  legal  reports.  The 
ablest  men  in  England  and  the  United  States,  have  ascer- 
tained to  a  mathematical  certainty  that  the  fees  of  lawyers 
and  the  costs  exceed  greatly  in  amount  the  value  of  the 
things  in  controversy.  Take  all  the  law-suits  now  in  pro- 
gress in  the  United  States,  or  the  State  of  Texas,  value  the 
property  in  its  dollars  and  cents,  and  you  will  find  that  the 
cost  of  litigation  exceeds  the  value  of  the  things  litigated. 
Ought  we  not,  then,  to  adopt  some  other  system?  And 
there  is  no  other  but  this  of  arbitration.  You  can  settle 
all  your  differences  by  arbitrators  without  costs  ;  for  then 
the  lawyers  do  not  pocket  large  fees,  and  there  are  no 
officers  who  live  upon  litigants.  I  am  friendly  to  the 
system,  because  I  have  seen  it  in  active  operation.  I  have 
lived  in  countries  where  there  were  no  law-suits;  where 
every  difficulty  was  settled  by  the  friendly  interposition  of 
neighbors.  The  peace-maker  lived  there;  the  lawyer  did 
not.  And  no  difficulty  resulted  from  this  system.  The 
members  of  the  Baptist  Church  settle  all  their  differ- 
ences by  arbitration  ;  the  Methodists  all  theirs  ;  the  Quakers 
all  theirs  by  arbitration.  If  this  system  prevail,  you  will 
find  men  in  everv  neighborhood,  able  and  Christian  men, 
who  would  be  i)roud  of  the  character  of  arbitrators  and 
peace-makers  among  their  fellow-men." 

It  would  certainly  be  well  for  the  best  interests  of 
society,  if  the  principles  of  morality  inculcated  by  the 
Golden  Rule  and  presumed  in  this  argument,  could  be  estab- 
lished as  the  law  of  the  land,  and  practically  enfoiced  in 
the  ordinary  transactions  of  life  ;  but  such  a  rule  has  been 
found  to  be  replete  with  difficulties,  and  absolutely  inap- 
plicable and  inadequate  to  the  wants  and  wishes  of  society. 
The  doctrine  of  compulsory  arbitration  was  rooted  in  the 
early  laws  of  Texas,  but  formed  a  blank  feature  of  its 
jurisprudence.  No  suit  could  be  maintained  until  the 
matter  in  controversy  had  been  first  submitted  to  the 
arbitration  of  huenos  homhres,  and  a  certificate  obtained 
from  them  that  the  difficulty  could  not  be  settled  by  arbitra- 
tion. The  Mexican  laws  also  required  that  conciliation 
should    first    be    attempted    by    the    interposition    of    two 


LEMUEL    DALE    EVANS.  113 

conciliators^  who  had  power  to  select  a  third,  and  their 
certificate  of  the  fact  was  requisite  to  the  commencement 
of  an  action.  But  the  Anglo-Saxon  settlers  of  Texas 
declined  to  submit  their  disputes  to  such  arbitration,  and 
resorted  to  the  custom  of  simply  obtaining  the  certificate 
in  order  to  comply  with  the  law.  Not  one  case  in  five 
hundred  was  settled  by  arbitration.  The  principle  presumes 
a  standard  which  practical  morality  and  voluntary  justice 
has  never  yet  attained  in  any  community,  and  it  is  feared, 
never  will,  until  the  passions  and  frailties  of  men  are 
subjected  to  more  powerful  moral  influences  and  restraints 
than  any  rule  of  human  conduct  has  yet  been  able  to  devise 
and  enforce 


114  BENCH  AND  BAR  OF  TEXAS. 


PETER    W.    GRAY. 


The  subject  of  this  memoir  was  born  in  Fredricksburg, 
Virginia,  in  the  year  1819.  His  father,  William  Fairfax 
Gray,  removed  his  family  to  Texas  while  his  son  Peter  was 
but  a  mere  youth,  and  served  as  clerk  of  the  House  of 
Representatives  of  the  Republic  in  1837.  He  was  subse- 
quently district  attorney,  and  held  that  office  at  the  time  of 
his  death  in  Houston,  in  1841. 

Peter  W.  Gray  was  chiefly  reared  and  educated  in 
Houston,  studied  law  in  the  office  of  his  father,  and  suc- 
ceeded him  as  district  attorney.  In  1846  he  was  a  member 
of  the  first  Legislature  of  the  State,  and  his  services  in  that 
body  were  distinguished  for  the  highest  efficiency.  He  was 
the  chief  author  of  the  practice  act,  which  eliminated  and 
excerpted  from  the  mutually  repugnant  systems  of  the  civil 
and  common  law  the  clear  and  well  defined  method  of 
reaching  the  merits  of  a  case,  which  led  to  the  present 
excellent  systems  of  pleading  and  practice  in  the  Texas 
courts. 

He  was  soon  afterwards  appointed  judge  of  the  Houston 
district,  and  so  learned,  impartial  and  just  was  the  manner 
in  which  he  performed  his  judicial  duties,  that  he  was 
chai*acterized  by  Chief  Justice  Roberts  as  "the  very  best 
district  judge  that  ever  sat  upon  the  Texas  bench." 

As  a  lawyer  Judge  Gray  attained  early  in  life  a  high 
standing  at  the  bar,  and  was  distinguished  for  his  astuteness 
and  vigor,  and  for  his  solid  professional  accomplishments. 
His  knowledge  of  the  law  was  profound,  and  he  was  pro- 
ficient and  practical  in  the  application  of  principles.  His 
mind  was  highly  analytical,  and  he  was  expert  in  eliminating 
truth  from  the  speciousness  of  circumstances.  Subsidiary 
to    this,    his   love   of    justice    and   abhorrence    of    wrong 


PETER    W.   GRAY.  115 

prompted  his  best  exertions  in  tiie  establishment  of  legal 
right  and  equitable  principle.  He  was  ardent  in  his  devo- 
tion to  duty  and  conscientious  in  his  professional  dealings, 
which  engaged  tlie  confidence  of  his  clients  and  the  esteem 
of  the  people.  He  was  thoroughly  familiar  with  Texas 
jurisprudence,  and  his  knowledge  of  the  statute  law  and  of 
the  import  and  reason  of  the  decisions  of  the  Supreme 
Court,  made  him  a  safe  counselor  and  a  successful  lawyer. 

These  qualities,  enhanced  by  his  habits  of  self-reliance 
and  independence  of  thought,  responded  to  the  require- 
ments of  an  eminent  judge  and  attained  for  him  the  dis- 
tinction upon  the  bench  so  generously  canonized  by  the 
eulogy  of  the  chief  justice. 

During  the  war.  Judge  Gray  represented  the  Houston 
district  in  the  Confederate  Congress,  and  was  a  staunch 
supporter  of  every  measure  for  strengthening  the  arms  and 
promoting  the  interest  of  the  Confederacy.  When  hostili- 
ties ceased  he  returned  to  Houston  and  resumed  his  prac- 
tice, endeavoring  by  his  example  and  counsel  to  re-establish 
the  order  of  peaceful  pursiiits  and  ameliorate  the  condition 
of  his  people. 

In  February,  1874,  he  was  appointed  an  associate  justice 
of  the  Supreme  Court,  to  fill  a  vacancy  occasioned  by  the 
resignation  of  Judge  W.  P.  Ballinger,  who  had  been  but 
recently  promoted  to  the  bench,  and,  though  in  feeble  and 
declining  health,  he  responded  to  the  call  for  his  services 
and  entered  upon  the  discharge  of  his  judicial  duties.  But 
soon  finding  that  he  was  physically  unable  to  perform  the 
functions  of  his  high  office,  and  being  unwilling  to  leave  the' 
court  with  an  even  number,  which  might  embarrass  the 
course  of  justice,  while  he  sought  to  repair  his  health  in 
retirement,  he  resigned  his  seat  on  the  18th  of  April,  hav- 
ing held  the  position  but  two  months,  and,  retiring  to  his 
home  in  Houston,  died  on  the  3d  of  October,  1874. 


116  BENCH  AND  BAR  OF  TEXAS. 


MICAJAH    HUBBARD    BONNER. 


This  remarkable  man  and  eminent  judge  was  the  son  of 
Rev.  Wm.  N.  Bonner,  a  Methodist  minister,  and  was  born 
in  Greenville,  Butler  County,  Alabama,  on  the  25th  of  Jan- 
uary, 1828  ;  but  in  1836  removed  with  his  father's  family  to 
Holmes  County,  Mississippi.  His  early  education  was  ob- 
tained from  the  common  schools  of  the  country  and  completed 
by  an  irregular  course  at  La  Grange  College,  in  Kentucky; 
but  he  possessed  an  aspiration  for  knowledge  which  no  cir- 
cumstance of  his  youth  could  suppress,  and  an  ambition  to 
achieve  a  name  and  a  place  among  men  undaunted  by  any 
prospect  which  the  future  could  present  to  his  view.  Hav- 
ing prepared  himself  for  the  practice  of  law,  he  was  admit- 
ted to  the  bar  at  Lexington,  Mississippi,  in  1848,  and  the 
next  year,  being  attracted  by  the  allurements  which  the 
new  fields  of  the  West  offered  to  enterprise  and  genius,  he 
emigrated  to  Texas  and  began  the  practice  of  his  profession 
at  Marshall,  in  an  office  built  with  his  own  hands ;  but  soon 
afterwards  removed  to  Eusk,  in  Cherokee  Countjs  and 
formed  a  copartnership  there  with  the  distinguished  J. 
Pinckney  Henderson,  who,  in  view  of  his  great  talents  and 
success,  was  justly  considered  as  the  head  of  the  Texas  bar. 
This  association  afforded  to  Mr.  Bonner  at  once  the  field  to 
which  his  energy  and  genius  were  adapted  and  which  his 
ambition  had  coveted,  and  he  now  entered  upon  that  brill- 
iant and  successful  career  at  the  bar  which  finally  raised 
him  to  the  highest  i^osition  upon  the  bench.  This  partner- 
ship continued  until  General  Henderson  was  elected  to 
Congress,  after  which  Mr.  Bonner  practiced  alone  for  some 
time  and  then  associated  with  his  brother,  F.  W.  Bonner; 
but  so  eminent  and  widespread  was  his  reputation  for  legal 
learnins:  and   ability,  and   his  fine  social  qualities  and  per- 


-:  DudeusUi'o ' 


^: 


^wnvvn:. 


MICAJAH    HUBBARD    BONNER.  117 

sontil  integrity  had  rendered  him  so  popular,  that,  in  1873, 
the  lawyers  of  the  Seventh  District,  of  which  he  was  not  a 
resident,  but  which  was  already  within  the  scope  of  his 
practice,  unanimously  petitioned  for  his  appointment  to  the 
bench  of  that  district.  This  was  effected,  and  he  then  re- 
moved to  Tyler,  which  was  his  place  of  residence  during 
the  remainder  of  his  life. 

Upon  the  bench  Judge  Bonner  exercised  in  the  highest 
degree  the  ability  and  qualities  which  had  raised  him  to  that 
position,  and  in  1874  Governor  Coke  reappointed  him  to 
the  same  judgeship,  which  he  held  until  the  adoption  of  the 
Constitution  in  1876,  which  provided  for  an  elective  judi- 
ciary, and  was  then  elected  to  the  same  office  by  the  people. 
In  1878  he  was  appointed  by  Governor  Hubbard  an  asso- 
ciate justice  of  the  Supreme  Court,  to  fill  a  vacancy 
occasioned  by  the  resignation  of  Chief  Justice  Moore,  and 
was  chosen  to  this  position  by  the  people  at  the  ensuing 
election.  At  the  expiration  of  his  term  he  declined  to  bo 
re-elected  and  returned  to  the  bar,  preferring  the  duties  and 
more  remunerative  emoluments  of  a  large  practice. 

Judge  Bonner  possessed  a  vigor,  perseverance,  and  in- 
quisitiveness  of  mind  which  permitted  nothing  to  pass 
from  under  his  observation  without  his  thorough  compre- 
hension of  its  character ;  and  to  these  trained  habits  of 
sensation  and  perception  was  added  a  well  regulated  judg- 
ment. While  these  qualities  will  assert  their  superiority  in 
whatever  sphere  they  may  be  exercised,  they  are,  of  all 
others,  the  most  important  qualifications  for  success  at 
the  bar. 

As  a  lawyer.  Judge  Bonner  was  profound  and  exact.  He 
was  methodical  and  laborious  in  the  preparation  of  his 
cases,  and  was  always  well  armed  with  precedent  and 
authority.  He  was  cautious  and  deliberate  in  assuming  his 
ground  and  surveyed  with  care  every  inch  of  the  field 
before  he  rushed  to  the  attack  or  planted  his  lines  of  de- 
fense; hence  there  was  a  fixed  precision — an  engageil  cer- 
tainty attending  the  positions  he  took,  which  no  skill  of 
sophistry  could  shake.  His  judgment  was  intuitive  and 
his  logical  powers  spontaneous.     He  rarely  indulged  in  the 


118  BENCH  AND  BAR  OF  TEXAS. 

lofty  strains  of  rhetoric,  and  never  in  impassioned  challenges 
of  applause.  But  while  his  oratory  was  usually  devoid  of 
ornamentation,  it  was  forcible,  logical,  and  laden  with 
argument.  He  readily  perceived  the  main  points  of  a 
question  and  addressed  himself  to  the  gist  of  the  contro- 
versy—  a  nile  which  commends  itself  both  by  its  utility 
and  the  sound  sense  b}'  which  it  is  dictated,  and  which,  if 
more  universally  observed,  would  greatly  enhance  the  ex- 
pedition of  the  courts  and  the  attainment  of  justice,  while 
it  would  often  lift  a  heavy  burden  from  the  patience  of  both 
judge  and  jury. 

Another  feature,  which  added  greatly  to  Judge  Bonner's 
success  as  a  lawyer,  was  his  uniform  placidity  and  good 
nature.  While  stern  and  immovable  in  his  convictions  and 
in  the  positions  he  had  assumed,  his  professional  ethics 
were  marked  by  a  cultured  suavity  which  preserved  the 
most  cordial  relations  between  him  and  the  other  members 
of  the  bar,  and,  as  has  been  said  of  another,  he  wielded 
the  club  of  Hercules  wreathed  with  roses. 

In  addition  to  his  large  and  well  stratified  stores  of  legal 
knowledge,  the  vigorous  and  active  mind  of  Judge  Bonner 
had  gathered  resources  from  every  branch  of  science. 
While  he  delighted  to  delve  in  the  rugged  field  of  his  pro- 
fession, his  sentimental  nature  and  refined  taste  collected 
also  the  gems  of  romance  and  the  lioAvers  of  aesthetics ;  yet 
he  never  neglected  the  realities  of  life  for  the  mere  visions 
of  fancy.  His  attention  was  attracted  but  not  beguiled  by 
that  literary  curiosity  which  often  allures  a  man  of  genius 
from  his  chosen  pursuit,  and  engages  his  powers  in  the 
wasting  diversions  of  inutility.  Capable  of  great  applica- 
tion and  full  of  the  ardor  of  a  versatile  genius,  he  devoted 
himself  with  severe  restraint  and  indefatigable  zeal  to  the 
attainment  of  all  useful  and  refining  knowledge. 

But  it  was  upon  the  bench  that  he  wore  his  brightest 
laurels.  It  was  here  that  his  fearless  independence  of 
character  in  thought  and  action,  his  uncompromising  regard 
for  truth  and  justice,  and  his  profound  knowledge  of  law, 
were  most  strikingly  exemplified.  He  was  eminently  gifted 
with  the  power  of  methodical  and  accurate  dispatch,  and, 


MICAJAH    HUBBARD    BONNER.  119 

as  a  district  judge,  the  business  of  his  court  was  conducted 
with  the  current  smoothness  and  uniformity  of  a  well  regu- 
lated machine.  If  he  hesitated,  it  vvas  but  to  assure  him- 
self of  that  which  was  right  and  lawful,  and  then  his 
firmness  of  character  and  conscientious  conviction  per- 
mitted no  unnecessary  obstacles  to  be  thrown  in  the  path 
of  expeditiop.  His  court  was  a  sanctum  of  dignity  and 
decorum.  But  whilst  he  maintained  with  scrupulous  and 
exacting  regard  the  sanctity  which  should  always  surround 
the  altars  of  justice,  he  was  not  austere ;  but  his  official  de- 
meanor, like  his  social  intercourse,  was  clothed  with  the 
graces  of  culture  and  Christianity. 

As  a  judge  of  the  Supreme  Court,  his  diligence  and  ca- 
pacity for  patient  and  laborious  research  left  no  field  unex- 
plored in  his  search  for  principles  and  precedents  which 
nestle  in  the  dictates  of  truth  and  equity,  while  his  learning, 
his  powers  of  analogy  and  parity  of  reason  directed  their 
application  with  unerring  fingers  and  enabled  him  to  rescue 
justice  from  the  most  specious  claims  of  wrong.  The  lan- 
guage of  his  decisions  is  that  of  a  thorough  legal  scholar, 
and  sparkles  with  the  imprint  of  a  clear  mind,  an  upright 
heart  and  a  pure  conscience.  It  would  be  gratuitous  ser- 
vice to  the  profession  to  attempt  to  cite  the  important 
points  in  his  opinions.  With  these  the  gentlemen  of  the 
Texas  bar  are  already  familiar.  They  settle  many  im- 
portant questions  and  establish  some  of  the  principle 
features  of  Texas  jurisprudence. 

In  private  life  Judge  Bonner  was  amiable  and  refined. 
Like  Lord  Chesterfield,  he  considered  politeness  the  lubri- 
cator of  society,  and  to  smooth  the  pathways  of  others  he 
recognized  as  the  great  duty  of  man.  This  sentiment, 
quickened  by  his  nature,  and  intensified  by  the  love  which 
he  bore  to  his  profession,  enlisted  his  especial  sympathies 
and  services  in  behalf  of  those  who  sought  its  pathway  to 
success  and  prominence,  and  the  young  lawyer  found  in 
him  a  friend  who  delighted  in  efforts  to  promote  him.  He 
was  a  fond  husband,  a  doting  father,  and  a  devoted  friend, 
and  the  golden  chain  was  linked  with  the  jewels  of  domestic 
felicity.     He  was  married  at  Marshall,  in   1849,  to  Miss 


120  BENCH  AND  BAR  OF  TEXAS. 

Elizabeth  P.  Taylor,  daughter  of  Dr.  Job  Taylor,  a  lady  in 
every  respect  worthy  of  the  character  of  her  husband,  and 
who,  no  doubt,  afforded  him  that  encouragement  which 
only  the  smiles  of  loveliness  can  inspire. 

On  his  retirement  from  the  Supreme  bench  in  1882, 
Judge  Bonner  resumed  his  practice  at  Tyler,  and  at  the 
request  of  many  of  his  professional  friends,  and  being 
instigated  by  a  liberal  encouragement,  he  began  the  prep- 
aiation  of  a  work  to  contain  a  compendium  of  the  rulings 
of  the  Supreme  Court  of  Texas  from  the  earliest  period  of 
its  organization ;  but  his  labor  was  prevented  by  declining 
health,  and  he  died  on  the  28th  of  November,  1883. 

Judge  Bonner  was  of  a  decidedly  religious  turn  of  mind, 
and  early  espoused  the  cause  of  Christianity.  His  life  was 
modeled  by  the  training  which  he  received  from  pious  pa- 
rents, and  he  attributed  with  reverential  pride  his  early  and 
lasting  victory  over  temptation  especially  to  the  hallowed 
influence  and  teachings  of  his  mother.  He  was  from  his 
youth  a  strict  member  of  the  Methodist  Episcopal  Church, 
and  died  in  the  communion  of  that  sect. 

The  life  of  Judge  Bonner  was  a  noble  commentary  upon 
the  value  of  amiability  and  gentlemanly  traits  of  character, 
and  impressed  the  lesson  that  a  mild  temper,  a  uniform  de- 
corum and  moderation  were  virtues  compatible  with  the 
greatest  attainable  success  at  the  bar  and  with  the  preserv- 
ation of  the  highest  dignity  upon  the  bench,  as  well  as  in 
the  social  circle  and  the  ordinaryintercour.se  with  men  ;  but 
although  he  was  fond  of  society,  he  never  indulged  in  either 
the  social  glass  or  the  social  game,  and,  while  guarding  with 
a  drawn  sword  every  avenue  of  moral  temptation,  he  per- 
mitted no  approach  to  his  judicial  favor.  The  following 
letter  from  a  railroad  official  upon  his  elevation  to  the  Su- 
preme bench  shows  that  he  extended  this  sentiment  even  to 
that  which  may  now  be  an  innocent  custom;  — 

"Palestine,  Tex.,  Dec.  28,  1878. 
Hon.  H.  M.   Bonner,  Tyler,  Tex. — 

jNIy  Dear  Sir: — Returning  from  Galveston,  I  have  at 
hand  yours  of  the  24th  inst.,  with  inclosure  of  pass  returned. 
We  sent  the  pass  to  you  for  the  reason  that  it  is  customary 


MICAJAH    HUBBARD    BOXNEK.  121 

for  railroad  corporations  to  extend  such  courtesies  to  the 
highest  officers  of  the  State  government.  We  highly  appre- 
ciate your  sentiments  upon  the  subject,  and  feel  that  in  your 
elevation  to  the  high  office  you  fill,  private  citizens  and  cor- 
porations have  alike  common  cause  for  satisfaction.   *  *  * 

Very  truly  yours, 
[Signed]  Ira  H.  Evans. 

While  it  was  Judge  Bonner's  custom  to  treat  in  this  way 
all  such  proffers  from  corporations  and  individuals,  his 
charities  were  large  and  oj)en-handed  and  untainted  by  any 
element  of  ostentation.  They  sprang  from  the  dictates  of 
a  pure  heart  and  a  love  of  virtue,  and  afforded  as  much 
pleasure  to  him  who  gave  as  to  him  who  received  them.  A 
bright  Mason,  he  practiced  the  hallowed  precepts  of  faith, 
hope  and  charity,  which  the  ancient  order  so  beautifully  and 
forcibly  inculcates ;  an  exemplary  Christian,  he  made  the 
teachings  of  Scripture  his.  rule  of  conduct ;  a  learned 
judge,  his  knowledge  was  subsidiary  to  his  moral  fortitude. 
His  addresses  to  the  grand  jury  were  models  of  legal  exposi- 
tion and  moral  commentary.  They  were  elevating  U)  the 
bar,  admonishing  to  the  people,  and  an  honor  to  jurdicature. 

IMPORTANT  SUGGESTIONS  OF  JUDGE    BONNER  IN  REGARD    TO 
REFORMS    IN  THE  JUDICIAL  SYSTEM. 

A   PROPOSED   AMENDMENT   TO  OUR   STATUTE    OF   TRESPASS   TO   TRY   TITLE. 

[Suggestion  Number  One.] 

One  of  the  greatest  problems  now  engrossing  public 
attention,  is  to  devise  a  more  economical  system  for  the 
administration  of  our  State  government ;  not  a  parsimonious, 
"penny-wise,  pound-foolish"  system,  but  one  which  will 
accomplish  the  desired  end  on  a  sound  and  proper  basis. 
This  and  a  few  succeeding  papers  are  most  respectfully 
intended  to  invite  reflection  and  suggestions  on  the  part  of 
the  members  of  the  profession,  to  whom  such  questions  more 
particularly  pertain,  to  some  needed  reforms  in  our  judicial 
department,  which,  it  is  believed,  will  greatly  lessen  the 
delay  and  expense    of  our    courts.     This  reflection    and  in- 


122  BENCH  AND  BAR  OF  TEXAS. 

vestigation  are  the  more  important  now,  in  view  of  the 
approaching  session  of  our  Legislature,  at  which  it  is 
proposed  to  revise  our  whole  system  of  laws,  both  civil 
and  criminal.  This  work  should  be  done,  if  possible,  after 
such  careful  thought  aud  deliberation,  in  consideration  of 
the  mischief  bo  be  remedied  and  the  object  to  be  attained, 
as  will  insure  a  system  which  will  avoid  that  great  evil  of 
modern  legislation —  frequent  changes  of  existing  laws,  by 
which  we  fly  by  bad  exi)erience  to  greater  ills,  and  which 
has  given  rise  to  the  maxim,  that  the  world  is  governed 
too  much. 

It  is,  however,  by  no  means  intended  to  encroach  upon 
the  work  of  the  able  and  learned  commission  appointed  to 
revise  our  laws,  nor  to  indicate  anything  like  a  general  sj^s- 
tem,  but  simply,  by  a  few  illustrations  of  supposed  defects, 
to  call  attention  to  the  necessity  and  importance  of  the 
labor  which  has  been  intrusted  to  them,  and  thus  give 
assurance  of  our  earnest  co-operation  in  the  great  work  of 
reform.  Neither  infallibility  nor  entire  originality  is 
claimed  for  the  suggestions  which  may  be  made,  but,  as 
before  stated,  the  object  desired  is  to  awaken  thought  and 
investigation. 

The  first  question  to  which  attention  is  *invited  is  the 
importance  of  an  amendment  to  our  statute  of  trespass  to 
try  title.  With  the  introduction  of  the  common  law  there 
was  an  express  provision  that  thereby  the  common-law 
system  of  pleading  was  not  adopted.  Our  act  of  trespass 
to  try  title,  by  which  all  the  fictitious  proceedings  in  the  old 
action  of  ejectment  were  abolished,  and  by  which  the 
controversy  that  had  for  so  long  been  protracted 
between  those  persistent  litigants,  John  Doe  and  Rich- 
ard Roe,  was  finally  terminated,  was  a  much  needed 
reform  upon  the  old  common  law.  But  so  much  of  the 
act  as  provided  that  the  defendant  shall  not  be  required  to 
put  in  any  other  plea  than  that  of  "  not  guilty  "  is  contrary 
to  the  general  policy,  if  not  thereby  impliedly  repealed, 
inaugurated  by  our  subsequent  legislation  and  judicial 
construction,  which  seek  to  make  our  system  one  of  special 
pleading.     As  stated  by  Mr.  Justice  Wheeler,  in  Mimms  v. 


MICAJAII    HUBBARD    BONNER.  123 

Mitchell,  in  the  very  first  volume  of  our  reports:  "But 
with  us,  neither  the  distinctions  of  the  fonn^  of  actions 
nor  the  general  issues  exist ;  but  our  pleadings  really  are, 
or  intended  to  be,  what  the  English  pleadings  are  defined 
to  be  —  the  statement  in  a  legal  and  logical  manner  of  the 
facts  which  constitute  the  plaintiff's  cause  of  action,  or  the 
defendant's  ground  of  defense,  or  the  written  statement  of 
those  facts  intended  to  be  relied  on  as  the  support  of  the 
party  in  evidence." 

This  statement  is  necessary  to  the  ends  of  Justice,  so 
that  the  parties  maybe  advised  of  the  true  issues,  and  come 
prepared  to  meet  them  with  the  testimony.  If  necessary 
in  ordinary  cases,  how  much  more  so  in  that  class  of  litiga- 
tion which  involves  the  title  and  possession  of  the  lands 
and  homesteads  of  the  country.  But,  under  the  plea  of 
"not  guilty,"  the  defendant  can  attack  his  assailant,  as 
from  behind  a  masked  battery,  without  previous  warning. 
In  this  way  important  rights  are  sometimes  lost  under  issues 
raised  for  the  first  time  on  the  introduction  of  testimony, 
which,  had  they  been  presented  in  the  pleadings,  could 
have  been  successfully  met  and  resisted.  Like  objection 
arises  to  the  pleadings  of  the  plaintiff,  when,  as  is  usually 
the  case,  it  is  but  a  general  statement  of  the  legal  owner- 
ship to  the  land  in  controversy. 

It  is  submitted  that  the  statute  should  be  so  amended  as 
to  require  both  parties  to  deraigu  in  their  pleadings,  at 
at  least  from  a  common  source  in  proper  cases,  their 
respective  titles.  This  would  be  consistent  with  the  true 
and  original  purpose  of  all  good  pleading,  and  which  our 
system,  with  perhaps  this  single  exception,  was  designed 
to  accomplish;  and  would  frequently  enable  the  court  to 
decide  on  demurrer  the  legal  effect  and  superiority  of  the 
respective  chains  of  title,  which  now  has  to  be  done  in  the 
charge  to  the  jury  after  all  the  delay  and  expense  of  a  trial 
upon  the  facts.  This  change,  it  is  believed,  in  its  practical 
effect,  would  not  be  pleading  the  evidence  in  the  case,  more 
than  is  now  required  in  setting  out  the  particularity  of  the 
claim  declared  upon  in  a  suit  of  debt. 


124  BENCH    AND    BAR    OF    TEXAS. 

THE   NECESSITY    OF   AN   APPEARANCE   TERM     TO    DETERMINE     THE    ISSUES 

OF   LAW. 

[Suggestion  Number  Two.]  . 

That  government  is  the  best  which  affords  to  its  citizens 
the  greatest  protection  to  the  rights  of  person  and  property, 
and  the  most  economical  and  speedy  legal  remedy  for  the 
violation  of  those  rights.  A  nation's  principal  wealth  con- 
sists in  that  of  the  individuals  who,  in  the  aggregate,  com- 
pose the  nation,  and  the  great  source  of  this  wealth  is  the 
industrial  resources  of  the  country,  that  which  produces 
and  which  can  be  utilized  for  botn  public  and  individual 
gain.  In  calculating  the  expenses  of  our  courts  we  should 
consider,  not  only  the  positive  loss  in  the  actual  amount  of 
indebtedness  thereby  created,  and  which  has  to  be  paid  to 
jurors,  witnesses,  etc.,  but  also  the  negative  loss  to  this 
producing  interest  by  the  withdrawal  of  labor  from  thesev- 
eraJ  industrial  pursuits. 

A  pyoper  consideration  of  the  subject  in  all  its  relations, 
and  particularly  in  the  loss  to  the  agricultural  portion  of  the 
community,  from  which  our  jurors  and  witnesses  princi- 
pally come,  will  show  that  the  indirect  expenses  of  our 
courts  perhaps  exceed  the  direct  expenses.  A  penny  un- 
necessarily spent,  when  it  should  be  made,  is  two  pence 
lost. 

To  ascertain,  then,  that  system  which  will  best  enable  us 
to  properly  carry  on  the  courts  with  the  least  attendance  of 
jurors  and  witnesses  deserves  the  profound  consideration  of 
our  wisest  statesmen.  It  is  confidently  believed  that  great 
reforms  can  be  made,  by  which  the  expenses  of  our  courts 
can  be  reduced  at  least  one-half  what  they  now  are  under  our 
present  system.  One  of  these,  it  is  submitted,  is  to  have  an 
appearance  term  of  our  District  Courts  for  the  purpose  of 
determining  the  issues  of  law,  at  which  neither  jurors  nor 
witnesses  are  required  to  be  in  attendance,  and  no  judg- 
ments to  be  rendered  except  those  taken  by  default  and 
consent.  Rule  24,  for  the  District  Courts,  recently  adopted 
by  the  Supreme  Court,  went  as  far  in  this  direction    as  ex- 


MICAJAH    HUBBARD    BONNER.  125 

isting  statutes  permitted,  and  has  already  been  attended 
with  good  results,  though  it  falls  far  short  of  much  that 
could  be  accomplished  under  proper  legislation.  It  is  not 
intended  that  there  shall  be  a  separate  appearance  term, 
but  that  the  first  succeeding  court,  after  citation  served, 
shall  be  the  appearance  term  for  all  the  cases  returnable 
thereat.  Practically,  it  will  cause  no  delay  to  litigants,  for 
under  our  present  practice  a  contested  case  is  very  rarely 
tried  at  the  term  to  which  the  same  is  brought. 

If  the  judge  presiding  needs  the  assistance  of  learned 
counsel  and  a  reference  to  authority,  at  any  stage  in  the 
progress  of  a  trial,  it  is  when  he  has  under  consideration 
the  issues  of  law  upon  demurrer.  In  the  courts  of  last  re- 
sort these  very  questions  are  determined  upon  full  argument, 
and  printed  briefs  from  eminent  counsel,  with  access  to  ex- 
tensive and  selected  libraries,  after  full  time  for  research 
and  deliberation,  and  upon  consultation  with  learned  and 
experiencd  brother  judges.  But  in  the  nisi  prius  courts, 
they  have  to  be  decided  by  a  single  judge,  and  at  compara- 
tively great  disadvantage  under  the  most  favorable  circum- 
stances. The  issues  are  not  narrowed  down  and  presented 
in  brief,  pointed  proportions,  as  in  the  courts  of  last  resort, 
but  are  first  presented  in  the  pleadings,  generally  in  a  vol- 
uminous, crude  mass,  from  which  the  true  propositions  of  law 
which  underlie  the  case  have  to  be  evolved.  This  has  to  be  done 
in  the  midst  of  the  hurry  and  confusion  of  the  court,  per- 
haps not  upon  full  or  satisfactory  argument,  often  in  coun- 
ties where  full  sets  of  our  own  State  Reports  even  are  not 
accessible,  and  when  impatient  jurors,  witnesses,  litigants, 
and  sometimes  impatient  lawyers,  when  not  engaged  in  the 
particular  case  on  trial,  are  anxiously  in  attendance.  If  the 
judge  presiding,  in  the  effort  to  discharge  his  sworn  duty, 
listens  patiently  to  argument,  and  endeavors,  by  a  proper 
determination  of  the  legal  questions  in  the  first  instance,  to 
avoid  an  error  which,  if  fatal  here,  will  be  fatal  to  all  sub- 
sequent proceedings,  he  is  called  a  "  slow  coach,"  and  de- 
nounced for  permitting  the  lawyers  to  indulge  in  argument, 
and  is  adjudged  to  be  unqualified  for  his  position.  If,  how- 
i_'v^r,  instead  of  fearless!}'  endeavoring  to  discharge  his  duty 


126  BENCH  AND  BAR  OF  TEXAS. 

he  seeks  popularity  by  a  false  show  of  profound  learning, 
which  enables  him  to  decide,  erroneously,  difficult  questions 
upon  the  moment  and  without  argument,  he  is  in  fact  not 
only  unworthy  of  his  position  but  makes  waste  by  making 
haste,  in  having  the  cases  remanded  to  again  undergo  all  the 
delay,  expense  and  uncertainty  of  another  trial.  Perhaps 
unreflecting  parties  would  not  so  frequently  denounce  the 
court  and  lawyers  for  patient  investigation  and  seemingly 
unnecessary  argument  were  their  own  cases  on  trial.  Would 
it  not  seem  arbitrary  indeed  to  them,  in  the  trial  of  a  case 
in  which  their  lives  or  homesteads  were  involved,  should  the 
court,  in  the  effort  to  make  the  very  equivocal  reputation  of 
being  a  fast  judge,  order  their  attorneys  to  set  down  because 
the  time  of  the  court  was  too  precious  to  do  one  of  the 
principal  things  for  which  the  tribunal  was  constituted  —  to 
hear  argument,  and  thus  summarily  decide,  perhaps  erron- 
eously against  them?  From  this  standpoint  the  true  mis- 
sion of  the  court  and  lawyers  would  be  viewed  in  entirely 
a  different  light.  As  said  by  that  great  equity  lawyer,  Lord 
Eldon,  in  Ex  parte  Pease,  1  Rose,  237,  '*  I  know  a  great  deal 
of  time  is  consumed  in  hearing  argument,  but  a  great  deal  of 
justice  is  the  result." 

A  remedy  for  the  seeming  delay  in  our  courts  and  which, 
perhaps,  in  too  many  cases,  is  real,  and  which  would  save 
the  now  necessary  expense  of  attendant  jurors  and  wit- 
nesses, and  prevent  the  hurry  and  consequent  liability  to 
err  in  the  determination  of  the  issues  of  law,  and  by  which 
a  happy  medium  between  unnecessary  delay  and  undue  haste 
can  be  attained,  is  to  have  the  appearance  term  above 
recommended.  This  docket  will  be  called  after  all  the  cases 
in  which  jurors  and  witnesses  are  required  have  been  de- 
cided, and  these  parties  have  returned  home,  and  when  the 
judge,  with  none  necessarily  in  attendance  except  the  law- 
yers, can,  after  full  argument,  and  when  the  desired 
amendments  have  been  filed,  finally  settle  the  true  issues  of 
law  in  the  case.  This  being  done  on  more  mature  delibera- 
tion, there  will  be  less  liability  to  err  and  to  have  the  judg- 
ment reversed  and  the  case  remanded  for  another  trial. 
In  this  way  many  issues  before  supposed  to  be   material, 


MICAJAH    HUBBARD    BONNER.  127 

and  to  sustain  which  a  cloud  of  witnesses,  under  our  present 
system,  would  be  in  attendance,  will,  at  the  first  term,  be 
eliminated  from  the  record,  and  occasionally  a  case  will  be 
dismissed  entirely  upon  general  demurrer,  and  thus  save 
the  attendance  of  both  witnesses  and  jurors.  If,  at  the 
same  term,  the  court  be  required  to  ascertain  the  jury  cases, 
and  set  the  call  of  the  jury  trial  docket  for  a  day  certain  at 
the  next  term,  then  the  parties  can  appear  with  such  wit- 
nesses only  as  are  necessary  to  sustain  the  issues  remaining 
in  the  case,  and  the  only  preliminary  question  to  the  trial  of 
all  cases  upon  the  issues  of  fact,  will  be  simply  that  of  con- 
tinuance; no  further  amendments  being  permitted,  except 
in  proper  cases  under  affidavit,  in  analogy  to  the  plea  of 
puis  darien  continuance  at  common  law. 

M.  H.  Bonner. 

DEPOSITIONS   OP  ALL  WITNESSES  IN  CIVIL  CASES. 

[Suggestion  Number  Three.] 

Having  now  decided  the  issues  of  law,  and  having  to  this 
point  saved  the  expense  of  the  attendance  of  both  witnesses 
and  jurors,  while  delayed  in  that  most  important  part  of 
the  trial,  and  the  expense  of  the  latter  in  all  cases  unless 
demanded,  and  having  set  down,  for  a  particular  day  in  the 
term,  the  call  of  the  jury  trial  docket,  so  that  jurors  need 
not  attend  before  that  time,  we  will  next  inquire  what  fur- 
ther expense  can  be  saved  in  the  attendance  of  witnesses. 
Before  doing  so,  however,  it  is  proper  to  pay  a  deserved 
tribute  to  that  clause  in  the  Constitution  of  1876,  which 
provided  that  no  jury  should  be  had  in  any  civil  case  unless 
demanded  by  one  of  the  parties.  Under  our  former  laws 
and  practice,  the  reverse  of  this  was  the  rule,  and  a  jury 
was  necessary  in  any  contested  case,  unless  expressly 
waived  by  both  parties,  thus  requiring  jurors  to  be  in  at- 
tendance throughout  the  whole  term.  In  the  practical 
operation  of  the  new  law  in  one  judicial  district,  of  which 
I  can  speak  advisedly,  and  I  presume  it  is  the  same  in 
others,  juries  have  not  been  demanded  in  more  than  one- 
third  of  the  trial  cases  ;  and  in  one  instance  a  jury  was  not 


128  BENCH  AND  BAR  OF  TEXAS. 

demanded  durino^  the  entire  term.  The  sinirle  item  of  the 
five  dollar  jury  fee,  which  formerly  would  have  been  taxed 
in  the  bill  of  costs,  in  the  a^sfreo-ate  will  amount  to  a  larire 
sum  thus  saved  to  litisxants.  This  growing  tendency  to  dis- 
pense with  juries,  with  the  reduction  of  the  gVand  jury  to 
twelve  members,  has  very  greatly  lessened  the  expense  of 
this  service,  and  with  an  appearance  term,  as  before  recom- 
mended, it  is  be;lieved  that  this  part  of  the  machinery  of 
the  courts,  which  had  grown  to  be  such  a  burden  upon  the 
people,  both  in  taxation  and  unnecessary  attendance,  will 
be  carried  on  at  comparatively  nominal  expense.  A  much 
greater  saving  can  be  realized  by  taking  the  depositions  of 
all  witnesses,  with  perhaps  a  few  exceptions,  under  proper 
rules  and  regulations  in  civil  cases.  The  most  burdensome 
and  expensive  part  of  the  whole  court,  to  both  litigants  and 
individual  members  of  the  community  in  the  great  majority 
of  the  cases,  is  occasioned  by  the  attendance  of  the  wit- 
nesses. This  is  particularly  so  to  the  witnesses  themselves 
in  cases  where  the  parties  litigate  in  forma  j)ciU2')eris. 

Under  existing  laws  the  deposition  of  witnesses  gener- 
ally, resident  within  the  county,  to  a  single  point  even,  can 
not  be  taken  unless  by  consent  of  both  parties.  The  s^'s- 
tem  by  deposition  has  long  been  the  practice  in  courts  of 
chancery,  and  thereby  great  delay  and  costs  have  been 
avoided,  and  our  procedure  is  one  of  mixed  law  and  chan- 
cery. Even  under  our  present  system  the  depositions  of 
females,  of  aged,  sick  and  afflicted  persons,  and  of  those 
who  are  non-residents  of  the  State  or  county,  can  be  taken, 
and  have  usual Ij'-  proven  satisfactory,  so  far  as  my  experi- 
ence and  observation  have  extended.  As  an  illustration,  if 
proper  and  practicable  to  take  the  deposition  of  a  witness 
who  resides  Avithout  the  county,  why  is  it  not  equally  proper 
and  practicable  to  take  the  deposition  of  a  witness  who  re- 
sides within  the  county,  perhaps  near  the  county  line,  and 
within  a  short  distance  of  his  neighbor  whose  deposition  is 
on  file?  Beside  the  very  great  expense,  direct  and  indirect, 
which  now  burdens  the  country,  every  court,  by  the  mileage 
and  per  diem  fees  to  witnesses,  and  by  the  withdrawal  of 
their   labor   and  su[)ervision   from   their  several   industrial 


MICAJAH   HUBBARD    BONNER.  129 

avocations,  there  would  be  other  very  marked  advantages 
resulting  from  the  proposed  change.  Cases  would  be 
more  speedily  brought  to  trial,  and  that  great  reproach  to 
our  present  judicial  procedure,  frequent  continuance  for 
want  of  the  testimony  of  absent  witnesses,  would  be  re- 
moved, as,  by  the  proper  use  of  diligence,  their  depositions, 
in  most  instances,  would  already  be  on  file;  the  testimony 
of  the  witnesses,  would  be  perpetuated  in  case  of  death  or 
other  casualty  or  defective  menioiy  ;  and  that  most  vexa- 
tious source  of  annoyance  to  both  court  and  attorneys,  a 
wrangle  over  statements  of  fact,  would  be  obviated. 

There  is  this,  and  perhaps  other  objections  to  the  system, 
that  in  some  instances  it  would  be  more  satisfactory  that  the 
the  witness  should  be  personally  on  the  stand  and  subjected 
to  examination  in  presence  of  the  court  and  jury.  This 
could  be  obviated  to  some  extent  by  requiring  the  witnesses 
to  attend  at  some  suitable  place,  —  as  a  general  rule  at  the 
court-house,  —  for  the  purpose  of  having  the  deposition 
taken,  and  giving  to  both  parties,  in  person  or  by  attorney, 
the  privilege  of  being  present,  and  propounding,  either  in 
writing  or  orally,  any  pertinent  questions  they  may  desire. 
In  some  cases,  on  affidavit  of  the  necessity  therefor,  the 
percjonal  attendance  of  the  witnesses  maybe  enforced  under 
such  rules  and  regulations  as  may  be  deemed  proper.  The 
tendency  of  modern  legislation  and  of  the  decision  of  our 
courts  of  the  very  highest  authority,  is  to  relax  the  old  rules 
of  evidence.  No  system  which  we  can  devise  will  be  per- 
fect, but  it  is  believed  that  the  advantages  of  the  plan 
suggested,  of  taking  the  depositions  of  all  witnesses  gen- 
erally in  civil  cases,  under  proper  safeguards,  even  with  the 
objections  to  it,  will  so  far  outweigh  the  disadvantages  of 
the  old  system  as  to  recommend  it  to  the  very  favorable 
consideration  of  the  profeesion. 

MORE   STRINGENT   TAWS   AND    PRACTICE   DEMANDED    ON   THE   SUBJECT     OF 

CONTINUANCES. 

[Suggestion  Number  Four.] 

Having  shown  how  that  stage  in  the  progress  of  the  trial 
in  civil  cases  at  which   the  parties  will  be  called  on  to  an- 
9 


130  BENCH  AND  BAR  OF  TEXAS. 

nounce  themselves  ready  on  the  issues  of  fact  or  apply  for  a 
continuance  can  be  reached  at  comparatively  little,  if  any, 
expense  of  either  jurors  or  witnesses,  and  having  shown 
that  applications  for  continuances  on  account  of  the  want  of 
testimony,  if  due  diligence  is  used  to  take  depositions,  will 
be  of  rare  occurrence,  we  will  next  see  how  delay  and  ex- 
pense can  be  saved  in  criminal  cases. 

If,  as  required  in  regard  to  the  issues  of  law  at  the 
appearance  term  for  civil  cases,  the  defendants  in  all  criminal 
cases  be  required  to  file  at  the  first  court  after  arrest  all 
exceptions  to  indictments  and  motions  to  quash,  or  else 
they  shall  be  deemed  waived,  and  the  court  be  required  to 
act  upon  them  at  the  same  term,  or  as  soon  thereafter  as 
the  other  business  will  permit,  then  one  very  prolific 
source  of  delay  and  expense  will  be  removed.  How  often 
has  it  occurred,  within  the  observation  of  every  experienced 
judge  and  attorney  of  long  practice,  that,  after  a  case  had 
been  called  and  continued  for  a  number  of  times,  fre- 
quently until  the  offense  was  barred  by  limitation,  after 
the  expenses  of  jail  fees,  attendance  of  jurors  and  witnesses 
had  accrued,  after  all  the  witnesses  had  at  last  been  found 
and  were  in  attendance,  many  of  them  possibly  from  distant 
counties,  and  the  jury  ready  to  be  impaneled,  exceptions 
to  the  indictment  have  for  the  first  time  been  filed,  presented 
and  sustained,  and  the  defendant  discharged.  How  easily 
could  all  this  have  been  obviated,  and  the  defendant  brought 
to  justice,  by  requiring  these  to  have  been  presented  and 
decided  at  the  first  term. 

This  devolves  upon  the  defendimt,  as  the  State  can  not 
force  the  issues  of  law  until  they  are  first  presented  by  the 
defendant. 

But,  admitting  the  indictment  to  be  good,  the  facility 
with  which  continuances  can  now  be  obtained,  is  a  sad  com- 
mentary upon  our  laws  and  practice. 

This  is  attributable,  doubtless,  in  some  instances,  to  the 
leniency  of  the  judge  presiding,  but  in  most  cases,  as  the 
requirements  of  the  law  are  complied  with,  he  is  compelled 
to  grant  the  continuance  ;  else,  after  the  delay  and  expense 
of  a  trial,  the  case  will  be  reversed  and    remanded.     Thus, 


MICAJAH    HUBBARD    BONNER.  131 

frequently  important  cases  are  worn  out  and  virtually  lost 
before  they  are  brought  to  trial.  Continuance  after  con- 
tinuance is  had  ;  witnesses  die  or  remove  from  the  county 
or  State;  their  interest  becomes  adverse,  or,  from  natural 
or  mercenary  causes,  important  facts  fade  from  the  memory 
or  can  not  be  obtained.  This,  as  said  by  Mr.  Justice 
Wheeler  in  another  connection,  is  of  so  frequent  occurrence 
"  as  to  seem  to  justify  the  reproach  of  the  law,  that  it  does 
not  afford  any  adequate  protection  for  the  sacred  rights  of 
personal  security,"  and,  we  might  add,  of  property. 

But  to  the  individual  loss  of  the  immediate  parties  liti- 
gant should  be  added  the  expenses  of  the  witnesses,  jurors, 
jail  fees,  and,  in  most  cases  on  the  criminal  docket,  and  in 
many  cases  on  the  civil  docket,  the  loss  in  fees  and  expenses 
to  the  officers  of  the  court. 

In  all  capital  cases  we  are  by  law  required  to  have  special 
venires  of  from  thirty-six  to  sixty  men.  As  these  are  not  en- 
titled to  pay,  except  the  particular  twelve  who  are  finally 
impaneled,  and,  as  in  State  cases  there  is  seldom  any  cost 
paid  to  witnesses,  and  frequently  none  to  the  officers  of  the 
court,  these  frequent  continuances,  with  their  consequent 
evils,  have  become  burdens  too  grievous  to  be  borne.  As 
grievous  burdens  were  imposed  in  olden  times,  by  the 
Scribes,  who  were  then  called  lawyers,  but  who,  I  am 
proud  to  say,  did  not  represent  that  respectable  and  influ- 
ential class  so  known  in  latter  times,  let  it  be  the 
important  work  of  those  who  are  now  called  lawyers  to 
remove  them. 

Many  witnesses  attend  from  day  to  day  and  from  term  to 
term  from  respect  to  the  process  of  the  court  and  the  pow- 
ers that  be,  while  many  others  disregard  and  seek  to  evade 
this  process,  and  thus  cause  the  necessity  of  frequent 
continuances.  I  call  to  mind  one  instannce,  of  an  aged, 
infirm  witness,  who  was  under  attachment  in  an  important 
capital  case  simply  because  he  resided  without  the  county. 
In  obedience  to  that  process,  he  traveled  a  distance  of 
two  hundred  and  fifty  miles,  through  the  inclement  snows 
of  January,  1877,  when  the  case  was  continued  for  the 
testimony  of  another  witness  who  resided  within  the  county 


132  BENCH  AND  BAR  OF  TEXAS. 

and  but  a  few  miles  distant,  who  failed  to  attend  because 
he  was  simply  under  the  process  of  subpoena.  An  attach- 
ment was  ordered  for  the  absent  witness,  which,  under  our 
statute,  could  not  previously  issue,  because  he  resided 
within  the  county.  This  compelled  his  attendance  at  the 
next  term,  when  the  case  was  again  continued  for  a  witness 
who  was  under  subpoena  only,  and  thus  was  the  case  con- 
tinued by  first  one  and  then  the  other  party. 

Again,  under  the  terms  of  our  statute,  as  construed  by 
the  Supreme  Court  in  Dinkeiis  v.  The  State,  42  Texas,  252, 
a  defendant  who  is  committed  to  jail  to  answer  at  the  next 
term  of  the  District  Court  a  grave  charge,  perhaps  without 
bail,  after  a  full  and  patient  investigation  for  days  before 
an  examining  court,  although  fully  aware  of  the  specific 
charse  n^ainst  him,  and  the  names  and  residence  of  all  the 
witnesses,  real  or  feigned,  in  his  behalf,  is  not  required  or 
even  permitted  to  use  any  diligence  to  prepare  for  trial 
until  the  bill  of  indictment  has  actually  been  found  and  re- 
turned into  open  court ;  and,  under  the  statute,  as  con- 
strued in  Shackelford  v.  The  State,  43  Texas,  140,  the  judge 
presiding  has  no  discretion,  over  the  objections  of  the  de- 
fendant, to  postpone  the  trial  for  a  reasonable  time,  until 
the  attendance  of  the  witnesses  can  be  obtained.  The 
same  restrictions  and  prohibited  use  of  diligence  apply  also 
to  the  State.  Hence,  instead  of  encouraging  trials  and  the 
administration  of  speedy  justice,  our  present  laws  and  prac- 
tice virtually  forbid  it,  as  a  continuance  in  a  State  case  at 
the  first  term  is  obtained  almost  as  a  matter  of  right. 

It  is  respectfully  submitted,  that  there  is,  on  principle, 
no  good  reason  why  the  first  application  for  a  continuance, 
in  both  State  and  civil  cases,  should  not  contain  all  the 
substantial  requisites  of  the  second  or  other  subsequent 
application;  that  the  law  should  be  so  amended  as  to  per- 
mit and  require  both  parties,  where  the  defendant  has  been 
bound  over  to  answer  a  charge  at  the  succeeding  term  of 
the  District  Court,  to  issue  with  due  diligence,  before  in- 
dictment found,  the  necessary  process  to  compel  the  atten- 
dance of  witnesses ;  that  witnesses,  in  all  felony  cases  at 
least,  should,  in  the  first  instance,  be  placed  under  bond,  as 


MICAJAH    HUBBARD    BONNER.  133 

a  general  rule,  with  security,  to  compel  their  attendance, 
and,  to  this  end,  authority  should  be  given  to  the  commit- 
ting magistrate  to  thus  force  the  attendance  of  all  the  material 
State  -witnesses  before  the  proper  grand  jury,  and  of  all 
the  material  witnesses  for  the  State  and  defendant,  before 
the  District  Court  for  the  trial  of  the  case.  This  would 
compel  the  prompt  attendance  of  witnesses,  prevent  evasion 
of  process  by  absconding  from  the  State  or  county  and 
thus  enable  the  courts  to  enforce  trials,  and  a  speedy  ad- 
ministration of  justice.  This  would  also  save  the  expense 
of  jail  fees,  of  the  bailiffs  and  other  officers  in  summoning 
these  very  witnesses,  and  the  delay  and  expense  of  the 
grand  jury  while  awaiting  their  appearance. 

In  this  connection,  and  as  saving  much  expense  to  the 
counties,  it  is  further  suggested  that  our  laws  should  be  so 
amended  as  to  compel  defendants  who  apjieal,  many  per- 
haps for  delay,  to  make  their  cases  returnable  to  the  then 
pending  or  next  approaching  term  of  the  Court  of  Appeals. 
This  is  in  harmony  with  one  of  the  main  objects  of  the 
organization  of  this  important  court,  and  would  not  only 
save  great  expense  to  the  country,  but  in  many  cases  should 
be  done  in  justice  to  the  defendants  themselves,  where  the 
judgments  have  been  affirmed  in  cases  where  the  punish- 
ment assessed  was  continement  in  the  penitentiary.  In 
addition  to  this  the  law  should  also  be  amended  so  as  to 
permit  speedy  sentence  to  be  passed  after  affirmance  of 
judgment. 

In  a  late  circuit,  in  one  of  the  judicial  districts  of  the 
State,  five  defendants  were  awaiting  the  action  of  the  court, 
in  cases  where  the  judgments  had  been  affirmed  for  several 
mouths,  before  sentences  under  existing  laws  could  be 
finally  passed ;  and,  doubtless,  there  were  many  similar 
cases  in  other  districts. 

THE   IMPORTANCE    OF    STATUTORY   LEGAL   FORMS. 

[Suggestion  Number  Five.] 

Every  intricate  science  has  its  formulas  ;  every  difficult  art 
its  designs.  The  law,  in  its  theory,  is  an  intricate  science  ; 
in  its  practice,  a  difficult  art. 


134  BENCH  AND  BAR  OF  TEXAS. 

The  old  masters  of  the  profession  have  handed  down  to 
us  the  result  of  their  experience  and  judicial  construction 
in  certain  forms  of  pleading,  civil  and  criminal,  and  other 
practical  forms,  which  have  stood  the  test  of  ages. 

Many  of  these,  in  some  of  their  requisites,  have  out- 
lived the  reasons  which  gave  them  existence,  and,  to  this 
extent,  have  become  obsolete.  In  many  respects,  however, 
they  are  still  valuable.  As  expressed  in  the  new  rules,  in 
regard  to  pleadings,  while  these  forms  are  not  authori- 
tatively requisite,  they  may  be  generally  followed  as  safe 
guides.  A' 'ere  all  our  officials  good  draftsmen,  and  had 
they  the  leisure  to  prepare  the  requisite  instruments  as  the 
particular  emergency  may  arise,  there  would  not  exist  so 
great  necessity  for  carefully  prepared  forms.  But  even 
our  courts  of  last  resort  sometimes  differ  as  to  the  legal 
construction  of  certain  instruments  prepared  by  our  best 
lawyers,  and  it  could  not  be  expected  but  that  our  officers, 
frequently  unskilled  by  previous  education  or  experience, 
should  in  many  instances  fail  in  their  experiments. 

The  want  of  proper  forms  has  occasioned  great  delay 
and  loss,  and  a  great  resort,  in  almost  numberless  appeals, 
to  the  proper  courts  on  questions  of  construction.  How 
many  indictments,  after  the  expense  of  procuring  the  wit- 
nesses before  the  grand  jury,  and  of  the  grand  jury  itself, 
and  the  further  expense  of  the  attendant  jurors  and  wit- 
nesses upon  the  court,  perhaps  for  several  terms,  jail  and 
other  incidental  fees,  have  linally  been  quashed  for  want  of 
a  simple,  comprehensive,  statutory  form. 

Such  legislation  works  well  in  other  States  where  tried, 
and  in  some  few  instances  in  which  we  have  statutory  forms 
the  most  satisfactory  results  have  followed.  Very  many 
lawsuits,  doubtless,  have  been  prevented  by  the  prescribed 
form  for  taking  the  separate  acknowledgment  of  a  married 
woman.  It  is  seldom  the  case  that  a  motion  to  quash  an 
attachment  is  based  upon  a  want  of  formality  in  the  bond. 
Our  statute,  which  prescribes  the  form  of  recognizance  in 
appeals  in  State  cases,  has  saved  much  confusion  and 
delay. 

Thousands  and  thousands  of  dollars  are  lost  annually  by 


MICAJAH   HUBBARD    BONNER.  135 

reason  of  defective  bail  bonds.  These  important  instru- 
ments, so  essential  in  the  administration  of  the  criminal 
law,  and  which  require  the  skill  of  one  learned  in  the  law, 
are  generally  prepared  by  inexperienced  or  incompetent 
officers,  who  do  not  know  the  legal  effect  of  the  terms  used, 
or  the  necessity  of  others  entirely  omitted.  Even  recog- 
nizance, judgments  iiisi  and  final,  taken  in  the  very  presence 
of  the  court,  are  often,  from  want  of  proper  care  and 
attention,  so  defective  as  to  be  set  aside  on  motion  or 
appeal.  In  this  way  not  only  is  the  amount  of  the  penalty 
lost  to  the  State,  after  all  the  expense  and  delay  incurred  to 
that  stage  in  the  prosecution,  but  in  many  cases  the  offender 
escapes  wholly  unwhipped  of  justice. 

Frequently  judgments  by  default  can  not  be  taken,  where 
there  is  no  appearance  and  contest  even  by  the  defendant, 
for  want  of  a  proper  return  by  the  officer,  who  may  live  in 
a  distant  county,  and  hence  can  not  amend  it  durins:  the 
term;  or,  if  taken,  they  are  set  aside  or  reversed  on  appeal. 
Depositions  are  in  many  cases  suppressed  for  want  of 
proper  certificate  from  the  officer,  or  informality  in  the 
manner  of  return  ;  indeed  for  depositions  to  be  sustained 
under  our  present  practice  is  the  exception  rather  than  the 
general  rule.  All  this  obstructs  the  machinery  of  the 
courts,  causes  frequent  appeals  to  the  Supreme  and  Appel- 
late Courts,  and  consequent  delay  and  expense  which  could 
easily  be  remedied. 

It  is  most  respectfully  submitted,  that  if  the  suggestions 
contanied  in  this  and  the  four  preceding  articles  be  prac- 
tically carried  into  effect,  and  if  the  judicial  districts  be  so 
reduced  in  size  as  to  insure  sufficient  time  for  the  full  call 
of  all  the  dockets  (the  want  of  which,  in  many  counties 
amounts  to  a  denial  of  justice),  and  so  as  to  give  the  judges 
that  time  for  reading  and  reflection,  so  essentially  necessary 
to  a  proper  discharge  of  their  high  and  responsible  duties, 
then,  it  is  most  confidently  believed  that  some  of  the  great- 
est defects  in  our  laws  aad  practice  will  be  remedied,  the 
enormous  expenses  of  our  judicial  system  will  be  reduced 
at  least  one-half  and  justice  will  be  more  speedily  and 
effectually  administered. 


136  BENCH  AND  BAR  OF  TEXAS. 

Before  concluding  these  suggestions,  it  is  proper  to  state 
that  it  was  not  intended  in  the  first  one,  "  A  Proposed 
Amendment  to  our  Statute  of  Trespass  to  Try  Title,"  to 
require  parties  to  set  out  their  title  papers  in  hoec  verba ^  but 
simply  to  deraign  them  according  to  their  legal  effect » 
which  can  be  done  in  a  small  space.  Neither  was  it  intended 
to  compel  a  defendant  to  plead  his  title,  when  he  simply 
relied  upon  his  possession  and  the  weakness  of  the  plain- 
tilF's  title;  but  in  cases  only  where  he  sought  to  recover  on 
the  superiority  of  his  own  title. 

His  sentence  of  judgment  upon  N.  T.  Dickerson,  a 
preacher,  shows  the  blending  of  sternesss  and  sympathy 
which  entered  into  the  composition  of  his  character.  He 
said  :  — 

"The  most  painful  of  my  official  duties  is  to  pass  the 
sentence  of  the  law  upon  those  who  have  been  convicted. 
In  your  case  this  duty  becomes  doubly  so  by  reason  of 
your  age  and  former  ministerial  position.  Now  past  your 
three  score  years,  once  a  minister  of  the  gospel,  the  cardinal 
doctrine  of  which  is  peace  on  earth  and  good  will  toward 
men,  it  is  indeed  a  sad  commentary  upon  the  frailty  of 
humnn  nature,  and  from  which  we  may  all  take  warning, 
that  you  should  be  arraigned  and  sentenced  for  the  crime 
of  murder.  The  verdict  of  the  jury  shows  that  in  an 
unguarded  hour,  when  reason  had  lost  her  sway  and  passion 
ruled,  you  took  upon  yourself  the  awful  responsibility  which 
belongs  to  God  and  the  tribunals  of  justice  only,  to  take 
the  life  of  a  fellow-being,  and  to  send  his  spirit  without 
previous  preparation  into  the  presence  of  Him  who  gave  it. 
In  justice  to  those  better  instincts  of  the  human  heart 
which  still  remains  to  man  amid  the  ruins  of  his  fall,  and 
in  extenuation  of  your  seeming  guilt,  we  indulge  the  sug- 
gestion that  there  are  mitigating  facts  in  your  case,  which 
the  unfortunate  circumstances  by  which  you  were  surrounded 
prevented  from  being  brought  to  light.  Our  human  tribu- 
nals are  far  from  being  infallible  ;  we  are  liable  often  to 
err,  but  before  the  judgment  bar  to  which  we  are  all  fast 
hastening,  when  the  secrets  of  all  hearts  shall  be  made 
known,  I  sincerely  trust  that  either  from  the  true  facts  of 
your  case,  which  may  not  have  been   fully   developed  here, 


MICAJAH    HUBBARD    BONNER.  137 

or  from  a  bitter  repentance  acceptable  in  the  sight  of  God, 
the  final  sentence  of  condemnation  forever  may  not  be  passed 
upon  you.  Your  general  good  character  for  peace,  testified  to 
on  the  trial  by  many  of  your  old  neighbors,  and  the  meek- 
ness with  which  you  have  borne  your  long  and  painful 
confinement  in  jail,  speak  much  in  your  favor.  These 
considerations,  with  your  age,  will  doubtless  appeal  strongly 
to  the  clemency  of  those  into  whose  custody  you  are  about 
to  be  committed.  Continued  good  behavior  on  your  part, 
may,  as  is  often  the  case,  shorten  the  term  of  your  confine- 
ment. I  strongly  commend  you  to  the  mercy  of  Almighty 
God,  who  graciously  promises  never  to  forsake  them  who 
put  their  trust  in  Him. 

♦'  It  is,  therefore,  the  sentence  and  judgment  of  this 
court  that  you  be  taken  hence  by  the  sheriff  of  Kaufman 
County,  and  by  him  safely  conveyed  to  the  penitentiary 
at  Huntsville,  there  to  be  confined  at  hard  labor  for  the 
term  of  ten  years." 

The  following  lecture,  delivered  by  Judge  Bonner  from 
the  bench,  upon  the  admission  of  an  applicant  to  practice 
in  his  court,  is  worthy  of  preservation,  and  is  commended 
to  all  young  lawyers  for  its  elevating  sentiment  and 
salutary  counsel:  — 

"  Standing  upon  the  threshold  of  your  profession,  within 
the  vestibule  of  the  great  temple  of  justice,  in  which  you 
are  now  called  to  oflficiate,  as  an  introduction  to  my  charge 
to  you  upon  the  true  mission,  duties  and  responsibilities  of 
lawyers,  I  call  your  attention  to  the  eloquent  language  of 
that  profound  scholar  and  jurist,  Judge  Story,  at  the  close 
of  his  great  work  on  Equity  Jurisprudence.  His  remarks 
are  applicable  to  the  whole  science  of  law.  He  says:  *  The 
grandeur  of  the  entire  plan  can  not  be  fully  comprehended 
but  by  the  persevering  resources  of  many  years.  The 
masterpieces  of  ancient  and  modern  art  still  continue  to  be 
the  study  and  admiration  of  all  those  who  aspire  to  a 
kindred  excellence;  and  new  and  beautiful  lights  are  per- 
petually reflected  from  them,  which  have  been  unseen  or 
unfelt  before.     Let  the  youthful  jurist,  who  seeks  to  en- 


138  BENCH  AND  BAR  OF  TEXAS. 

lighten  his  own  age,  or  to  instruct  posterity,  be  admon- 
ished that  it  is  by  the  same  means,  alone,  that  he  can  hope 
to  reach  the  same  end.  Let  it  be  his  encouragement  and 
consolation,  that  by  the  same  means  the  same  end  can  be 
reached.  It  is  but  for  him  to  give  his  days  and  nights, 
with  a  sincere  and  constant  vigor,  to  the  labors  of  the  great 
masters  of  his  own  profession,  and,  although  he  may  now 
be  but  an  humble  worshiper  at  the  entrance  of  the  porch, 
he  may  hereafter  entitle  himself  to  a  high  place  in  the  min- 
istrations at  the  altars  of  the  sanctuary  of  justice.' 

"  In  entering  upon  this,  one  of  the  most  important  and  re- 
sponsible of  the  learned  professions,  you  will  be  expected, 
as  an  individual,  to  discharge  more  prominently  your  duties 
as  a  good  citizen  and  member  of  society;  and  as  a  lawyer 
to  discharge  faithfully  the  new  duties  which  you  have  as- 
sumed to  the  court,  to  your  clients,  and  to  yourself.  The 
old  members  of  the  bar  are  passing  away,  and  the  young 
members  must  take  their  places.  Soon  to  their  keeping 
will  be  handed  down  the  duties,  responsibilities  and  esprit 
de  corps  of  the  profession.  They  should  prepare  them- 
selves to  discharge  well  the  one,  and  to  guard  sacredly  the 
other. 

"A  passing  glance  only  will  be  given  at  the  most  im- 
portant of  these,  presenting  the  mere  outlines  alone,  leav- 
ing the  details  to  be  filled  up  by  your  future  observation 
and  learning,  and  by  intercourse  with  the  honorable  and 
meritorious  members  of  the  profession,  with  whom  it  will 
be  your  good  fortune  to  associate.  I  can  not  do  this  more 
forcibly  than  by  calling  your  attention  to  the  Advocate's 
Oath  of  Geneva,  of  which  it  has  been  well  said  :  '  Here 
you  have  the  creed  of  ah  upright  and  honorable  lawyer. 
The  clear,  terse  and  lofty  language  in  which  it  is  expressed 
needs  no  argument  to  elucidate  its  principles,  no  eloquence 
to  enforce  its  obligations.  It  has  in  it  the  sacred  savor  of 
divine  inspiration,  and  sounds  almost  like  a  restored  read- 
ing from  Sinai's  original  but  broken  tablets.'  The  oath  is 
in  the  following  language:  'I  solemnly  swear,  before 
Almighty  God,  to  be  faithful  to  the  Republic  and  to  the 


MICAJAH    HUBBARD    BONNER.  139 

Canton  of  Geneva ;  never  to  depart  from  the  respect  due 
the  tribunals  and  authorities;  never  to  counsel  or  maintain 
a  cause  which  does  not  appear  to  be  just  or  equitable, 
unless  it  be  in  defense  of  an  accused  person;  never  to  em- 
ploy, knowingly,  for  the  purpose  of  maintaining  the  cause 
confided  to  me,  any  means  contrary  to  the  truth ;  and 
never  seek  to  mislead  the  judges  by  any  artifice  or  false 
statements  of  facts  or  law  ;  to  abstain  from  all  offensive 
personality,  and  to  advance  no  fact  contrary  to  the  honor 
and  reputation  of  the  parties,  if  it  be  not  indispensable  to 
the  cause  with  which  I  may  be  charged  ;  not  to  encourao-e 
either  the  commencement  or  continuance  of  a  suit  from 
motives  of  passion  or  interest ;  nor  to  reject,  for  any  con- 
sideration personal  to  myself,  the  cause  of  the  weak,  the 
stranger,  or  the  oppressed.' 

'*  A  brief  analysis  of  this  oath  is  worthy  of  your  most 
serious  consideration.  As  it  required  the  advocate  to  be 
faithful  to  the  Republic  and  to  the  Canton  of  Geneva,  you 
are  required  to  swear  that  you  will  support  the  Constitu- 
tion of  the  United  States  and  the  Slate  of  Texas  ;  that  you 
will  honestly  demean  yourself  in  the  practice  of  law,  and 
will  discharge  your  duty  to  your  clients  to  the  best  of  your 
ability. 

"The  proper  construction  and  faithful  administration  of 
the  laws  on  the  part  of  our  rulers,  and  the  respect,  venera- 
tion and  obedience  due  them  on  the  part  of  the  people, 
constitute  the  great  sheet-anchor  of  all  good  government ; 
but  a  latitudinous  construction  to  suit  the  wishes  of  tyrants, 
and  a  blind  and  ignorant  submission  to  fundamental  inno- 
vations is  the  dangerous  rock  upon  which  the  greatest  gov- 
ernments of  the  world  have  been  wrecked. 

"  There  is,  against  lawyers,  a  common  but  most  erroneous 
prejudice  growing  out  of  improper  practices  of  some  un- 
worthy members  of  the  profession.  It  should  be  your 
proud  aim,  both  by  your  example  and  discourse,  to  remove 
this  prejudice  and  to  elevate  the  profession  to  its  proper 
high  standard. 

"Lawyers  have  ever  been  foremost  to  advocate  the  princi- 
ples of  political  liberty  and  reform,  and  to  seal  with  their 


140  BENCH  AND  BAR  OF  TEXAS. 

blood  their  devotion  to  the  cause.  From  their  ranks, 
oftener  than  from  other  stations  in  life,  are  selected  our 
politicians  and  statesmen  in  the  executive  and  legislative 
departments  of  our  government,  both  State  and  Federal ; 
and  the  judiciary  department  must  necessarily  be  filled  by 
them.  History  will  fully  sustain  the  following  remarks  of 
Chancellor  Bibb  in  their  vindication :  — 

«' '  Do  not  cherish  prejudice  against  lawyers  as  a  class. 
They  have  been  in  all  free  governments  the  friends  and  sup- 
porters of  liberty,  exposing  the  corruption  of  ministers  and 
the  prostitution  of  judges.  They  are  necessary  to  bring 
the  ministers  of  the  law  to  an  account  for  oppression  in 
office  ;  to  warn  judges  of  their  duty  ;  to  apprise  the  people 
of  their  rights  ;  to  defend  them  against  the  encroachment 
of  unconstitutional  power ;  to  detect  the  frauds  of  the 
knavish  and  artful  upon  the  honest  and  simple;  they  are 
useful  in  the  greneral  administration  of  the  laws.' 

"  Some  of  the  most  remarkable  and  eloquent  speeches 
which  have  ever  been  delivered,  and  which  have  shaped  the 
destiny  of  nations,  will  most  strongly  prove  the  above 
statement.  Among  many  others  which  it  will  be  your  duty 
and,  doubtless,  your  pleasure  to  read,  I  refer  you  to  the 
celebrated  speech  of  Lord  Erskine,  *  On  the  Rights  of 
Juries,'  in  the  great  case  of  the  Dean  of  Asaph. 

"  Well  ma}'  we  be  proud  of  such  a  legacy,  and  right  earn- 
estly should  we  strive  to  sustain  this  noble  reputation,  and 
add  to  it  our  weight  and  our  influence.  It  is  estimated 
that  there  are  forty  thousand  lawyers  in  the  United  States. 
There  were  one  hundred  and  ninety-eight  in  a  recent  ses- 
sion of  Congress,  and  many  more,  doubtless,  in  the  several 
State  Legislatures.  In  despite  of  an  ignorant  prejudice  to 
the  contrary,  experience  proves  that  legislation  can  not  be 
carried  on  without  the  aid  of  lawyers  ;  for  who  can  well 
make  or  amend  that  which  he  does  not  understand  ?  Law- 
yers have  no  richer  harvest  than  that  which  grows  up  from 
ijrnorant  or  ill-advised  legislation. 

"  These  thousands  of  lawyers  are  scattered  in  the  princi- 
pal villages,  towns  and  cities  of  the  Union,  and  from  their 
education,  training,  habits  and  station  in  life,  necessarily 


MICAJAH    HUBBARD    BONNER.  141 

exercise  a  leadins;  and  controllino;  influence  over  the  senti- 
ments  of  society  and  the  policy  and  destiny  of  state.  The 
influence,  for  weal  or  woe,  of  such  an  array  of  trained  talent 
and  energy,  permeating  every  circle  of  society,  can  scarcely 
be  estimated.  As  one  of  this  great  army,  in  the  grand 
drama  of  life,  guard  well  your  actions  and  your  influence. 

"  We  are  required  never  to  depart  from  the  respect  due  to 
the  tribunals  and  to  the  authorities.  In  that  book  of  books, 
written  by  the  hand  of  the  great  Lawgiver  himself,  teaching 
us  as  man  never  taught,  and  whence  we  draw,  as  from  a 
never-failing  fountain,  our  great  principles  of  law  and 
equity,  we  are  commanded  to  obey  *  the  powers  that  be.' 
That  greatest  of  the  Apostles,  who  was  brought  up  at  the 
feet  of  Gamaliel,  the  learned  doctor  of  the  Jewish  law, 
spoke  on  one  occasion  unwittingly  against  one  of  the  judges. 
When  informed  of  this  he  declared  his  ignorance  of  having 
thus  spoken  to  a  judge,  and  said:  '  It  is  written:  "  '  Thou 
shalt  not  speak  evil  of  the  rulers  of  thy  people."  ' 

"  You  have  now  become  a  sworn  officer  of  the  court,  and 
that  which  adds  to  the  dignity  of  the  court  adds  to  your 
dignitj" ;  and  that  which  detracts  from  the  dignity  of  the 
court  detracts  from  your  dignity.  The  individuality  of  the 
judge  presiding  is  merged  into  his  official  position,  and 
though  you  may  not  respect  him  as  a  man,  you  should  have 
respect  for  his  office.  This,  besides  being  your  duty,  you 
will  find  in  your  practice  to  be  the  best  policy.  If  you  are 
always  courteous  and  respectful  to  the  court,  it  will  insure 
you  the  attention  of  a  considerate  judge,  though  he  may  be 
inclined  to  differ  with  you  in  your  construction  of  the  law 
or  facts  of  the  case. 

'•Another  obligation  to  the  court  is  most  forcibly  laid 
down  in  the  advocates'  oath,  —  that  you  will  never  employ, 
knowingly,  for  the  purpose  of  maintaining  the  cause  con- 
fided to  3^ou,  any  means  contrary  to  truth,  and  will  never 
seek  to  mislead  the  judges  by  an  artifice  or  false  statement 
of  facts  or  law.  As  said  by  Chief  Justice  Gibson  :  '  It  is 
a  popular  but  gross  mistake  to  suppose  thai  a  lawyer  owes 
no  fidelity  to  any  one  except  his  client,  and  that  the  latter 
is  the  keeper  of  his  professional    conscience.     He  is  es- 


142  BENCH  AND  BAR  OF  TEXAS. 

pecially  bound  by  his  ofBcial  oath  to  behave  himself  in  hm 
office  of  attorney,  with  all  due  fidelity  to  the  court  as  well 
as  to  the  client,  and  he  violates  it  when  he  consciously 
presses  for  an  unjust  judgment,  much  more  so  when  he 
presses  for  the  conviction  of  an  innocent  man." 

"As  has  been  most  forcibly  said,  and  which  you  can  well 
adopt  as  one  of  your  professional  maxims :  '  What  is 
morally  wrong  can  not  be  professionally  right.'  Truth, 
that  mirror  of  justice  and  good  faith,  that  talisman  of  in- 
tegrity, should  always  characterize  your  conduct  as  a  lawyer. 
As  a  man,  you  should  be  honorable  and  high-toned  in  all 
your  dealings,  and  as  a  lawyer,  your  duty  to  your  client 
never  demands  of  you  that  which,  as  a  man,  you  would 
scorn  to  do  for  yourself.  Your  client  can  demand  of  you 
to  protect  his  legal  rights,  but  not  to  sacrifice  your  moral 
honesty;  to  see  that  he  is  not  unlawfully  imposed  upon, 
but  not  that  you  impose  upon  yourself  or  the  court.  Re- 
member, then,  to  keep  unsullied  your  professional  reputa- 
tion, and  that  your  obligations  as  a  lawyer  are  not  intended 
to  supplant  your  obligations  as  a  gentleman,  but  rather  to 
add  to  them. 

"As  an  officer  of  the  court  you  are  expected  to  assist,  not 
to  lead  it  into  error  ;  to  hold  up  and  strengthen  the  hands 
of  the  judge  in  the  faithful  performance  of  his  high  office  of 
trust  and  confidence,  so  intimately  connected  with  that  per- 
sonal liberty  and  right  of  property  in  which  every  citizen 
is  interested.  Sadly  to  be  pitied  is  that  judge  who  thinks 
that  he  has  arrived  at  the  pinnacle  of  his  profession  and  has 
nothing;  more  to  learn.  If  ignorant  and  dull,  and  if  it  be 
possible  for  counsel  to  mislead  him  by  any  artifice  or  false 
statement  of  law  or  facts,  then  others,  less  scrupulous  than 
yourself,  might  exert  a  more  controlling  influence  over  him. 
If,  however,  he  should  be  learned  in  the  book  of  human 
nature  as  well  as  in  the  books  of  the  law,  he  would  soon  de- 
tect your  false  premises  and  fallacious  arguments,  and  you 
would  soon  cease  to  exert  that  influence  to  which  you  should 
be  entitled. 

"You  are  also  required  in  your  intercourse  and  practice 
in  the  court-room  to  abstain  from  all  offensive  jiersonalities. 


MICAJAH    HUBBARD    BONNER.  143 

and  to  advance  no  fact  contrary  to  the  reputation  of  the 
parties,  if  it  be  not  indispensable  to  the  cause  with  which 
you  are  charged.  Zeal  in  behalf  of  clients,  or  desire  for 
success,  should  never  induce  counsel  to  endeavor  to  obtain 
a  verdict  by  arguments  based  upon  other  than  the  facts  in 
evidence  and  the  conclusions  legitimately  deducible 
from  the  law  applicable  to  the  same.  All  remarks  calcu_ 
lated  to  excite  undue  passion  or  prejudice  should  be  care- 
fully avoided  ;  and  verdicts  obtained  by  such  unfair  means 
should  be  promptly  set  aside. 

"  You  will  find,  as  has  been  well  remarked,  that  pleasant- 
ness and  politeness  are  the  cheapest  and  most  remunerative 
commodities  with  which  a  young  man  ever  entered  into 
business.  If  some  inconsiderate  member  of  the  bar,  op- 
posing you,  should  resort  to  the  shallow  expedient  of  offen- 
sive personality,  rather  than  sound  argument,  remember 
that  the  wise  man  has  taught  us  that  it  is  not  always  best 
to  answer  another  according  to  his  folly ;  neither  is  it  be- 
neath the  dignity  of  a  true  gentleman  to  turn  away  wrath 
by  a  soft  answer.  It  is  an  excellent  practice  prevailing  in 
some  of  our  best  organized  courts,  and  handed  down  to  us 
by  the  fathers  of  the  profession,  and  well  worthy  our  emu- 
lation, that  the  members  of  the  bar  should  always,  in  the 
business  of  the  court-room,  address  each  other  as  '  my 
brother.' 

"  As  far  as  possible,  then,  in  your  intercourse  with  your 
brother  attorneys  and  the  officers  of  the  court  generally,  be 
on  the  very  best  terms  ;  merit  their  confidence  and  kind- 
ness, and  reciprocate  their  favors  and  their  courtesies.  Re- 
member, however,  that  every  pleasure  has  its  snare,  and 
that,  sometimes,  in  the  exhilaration  of  the  social  greeting 
and  the  boon  companionship  around  the  circuit,  which  is 
peculiar  to  lawyers  above  all  others  of  the  learned  profes- 
sions, you  may,  almost  insensibly,  be  led  into  excesses.  How 
often,  alas,  have  we  been  called  to  mourn  the  untimely  fate 
of  our  most  gifted  members.  They  appeared  as  flashing 
meteors,  but  soon  their  dazzling  brightness  was  hidden  behind 
the  clouds  of  dissipation. 

"  There  is  another  error  into  which  unreflecting  attorneys 


144  BENCH  AND  BAR  OF  TEXAS. 

sometimes  fall  —  that  of  unnecessarily  brow-beatini^  and 
abusino-  witnesses  and  parties.  You  should  recollect  that 
many  witnesses  and  parties  are  forced  into  court  by  com- 
pulsory process,  and  many  good  men,  from  the  novelty  of 
their  situation,  are  naturally  embarnissed.  You  should  not 
make  their  position,  and  that  which  is  often  their  misfor- 
tune, the  occasion  of  their  defamation  by  substituting 
privileged  slander  for  legitimate  argument.  In  a  proper 
case,  however,  it  is  your  I'ight,  and  it  may  be  your  duty,  to 
deal  with  them  as  you  think  they  deserve,  and  expose 
villiany,  corruption  and  perjury, 

"  Towards  3'our  clients  the  very  utmost  good  faith  is 
required,  and  you  should  be  true  and  faithful  to  their 
interests.  The  law  is  very  guarded  in  this  particular,  and 
their  privileged  communications  to  you  are  held  so  sacred 
that  the  courts  not  only  will  not  compel  you  to  disclose 
them,  but  are  forbidden  to  permit  you  to  do  so  without 
their  express  consent ;  this  being  both  a  right  belonging  to 
your  clients  and  a  duty  owing  to  yourself.  You  should 
give  them  good  counsel,  learn  the  facts  of  the  case,  and 
advise  them  of  the  law  bearing  upon  the  same.  Never 
from  motives  of  interest  or  passion  encourage  either  the 
commencement  or  continuance  of  a  suit,  nor  reject  from 
any  personal  consideration  the  cause  of  the  weak,  the 
stranger  or  the  oppressed  ;  and  never  counsel  or  maintain  a 
cause  which  does  not  appear  to  be  just  or  equitable,  unless 
it  be  in  the  defense  of  an  accused  person. 

"  Under  our  laws  every  one  is  presumed  innocent  until 
proven  guilty,  and  has  a  right  to  a  fair  and  impartial  trial 
by  the  court*  of  the  country.  Even  the  worst  criminal  in 
the  land  is  entitled  to  a  legal  trial,  and  to  be  judged  by  the 
proper  tribunal,  and,  though  you  may  be  impressed  with  a 
belief  of  his  guilt,  yet,  it  is  your  sworn  duty,  when  in  his 
defense,  to  see  that  he  is  not  convicted  contrary  to  the 
rules  of  law  and  the  practice  of  the  courts.  The  law,  in 
its  humanity,  requires  the  court  to  appoint,  when  parties 
are  too  poor  to  employ,  counsel.  The  profession  has 
much  of  this  *  charity  practice,'  for  which  the  world 
does  not  give  it  credit.     When   so  appointed,  it  is  your 


MICAJAH    HUBBARD    BONNER.  145 

duty  to  see  that  the  defendant  has  a  fair  and  impartial  legal 
trial — nothing  more,  nothing  less. 

"The  property,  reputation,  and  even  the  life  of  your 
client  may  be  confided  to  your  care;  and,  that  you  may 
properly  protect  them,  it  is  your  solemn  duty  to  learn,  and 
if  possible,  to  master  the  law.  Our  system  of  law  pro- 
cedure is  peculiar,  and  our  State  an  empire  in  its  territory 
and  resources,  and,  if  undivided,  bids  fair  soon  to  rank 
with  the  proudest  in  the  Union.  It  presents  extraordinary 
inducements  for  active  brains  and  energetic  hands,  insuring 
both  honorable  reputation  and  comfortable  competency. 
You  must,  how^ever,  be  the  architect  of  your  own  profes- 
sional edifice.  There  is  indeed  here  no  '  royal  road '  to 
preferment,  no  excellence  without  great  labor.  You  will 
find  that  even  in  the  viginti  annorum  lucubrationes,  instead 
of  having  mastered  the  whole  of  the  law,  you  will  but  have 
trained  yourself  for  the  great  work  ;  that  new  and  rich 
fields  of  inquiry  open  their  harvest  before  you,  and  that 
new  conquests  invite  you  onward.  Its  boundaries,  like 
space,  seem  to  recede  as  we  advance.  A  great  master  of 
the  art,  when  asked  in  what  does  true  eloquence  consist, 
answered:  '  Action,  action,  action  ! '  One  of  the  greatest 
sources  of  a  lawyer's  success  is  reading,  ?'eatZi»^,  reading  ! 
Auotherof  the  most  prolific  sources  of  instruction,  combining 
both  the  theory  and  the  practice  of  the  law,  is  the  actual  work 
in  the  court-room .  Whether  engaged  or  not  in  the  particular 
case  on  trial,  if  you  can  consistently  with  other  engage- 
ments, watch  it  closely  and  with  the  determination  to  learn. 
Besides  the  direct  instruction,  it  may  open  to  you  a  rich 
vein  of  thought  and  investigation.  It  is  said  thatthegreat 
Daniel  Webster  once  gained,  with  a  brief  prepared  for  a 
justice  court,  a  celebrated  case,  in  which  he  received  a 
large  fee.  Watch  the  learned  lawyer,  and  the  eloquent 
advocate,  his  ease,  his  self-possession  and  his  learning; 
scan  closely  the  pleadings,  listen  to  the  artful  examination 
and  cross-examination  of  the  witnesses,  and  to  the  questions 
of  evidence  ;  note  the  arrangement  and  manner  of  the 
argument,  determining  between  the  terse,  pointed  logic, 
and  fervid  zeal  of  the  true  advocate,  and  the  rambling 
10 


146  BENCH  AND  BAR  OF  TEXAS. 

thoughts  tintl  the  '  lono-,  hollow  harangues  '  of  others.  In 
this  way  jou  will  learn  the  art  of  the  law,  that  tact  and 
practice  so  essential  to  success,  and  which  no  amount  of 
reading  can  supply.  Truly  it  may  be  said  that  ministers  of 
the  gospel  may  be  aided  by  Divine  inspiration,  empirics  in 
the  medical  profession  may  bury  their  ignorance  and  their 
blunders  with  their  unfortunate  dead,  but  the  practice  of 
the  lawyer  stands  upon  its  own  merits,  exposed  to  the  open 
gaze  of  the  whole  multitude,  and  a  discerning  public  will 
not  be  slow  to  judge  him  by  the  proper  standard.  It  is 
not  expected  that  every  one  will  make  a  distinguished 
advocate  or  a  profound  jurist,  but  all  who  aspire  to  become 
successful  lawyers  should  start  out  with  a  reasonable 
amount  of  good,  native  intelligence,  and  a  large  share  of 
energy.  As  between  such  and  the  man  with  fine  natural 
talent,  who  relies  mainly  on  that  for  success,  you  will  find 
that  in  the  end  it  will  be  but  a  renewal  of  the  race  between 
the  hare  and  the  tortoise,  that  energy  and  perseverance 
will  outspeed  the  erratic  flight  of  mere  brilliant  genius. 
Judge  Story  says  :  '  To  no  human  science  better  than  the 
law  can  be  applied  the  precepts  of  sacred  wisdom  in  regard 
to  zeal  and  constancy  in  the  search  for  truth.  Here  the 
race  may  not  be  to  the  swift,  but  assuredly  the  battle  will 
be  to  the  strong.' 

"As  a  young  lawyer,  and  inexperienced,  you  should 
neither  expect  nor  receive  heavy  and  important  cases  at 
first.  But  '  despise  not  the  day  of  small  things ;  '  for  if 
you  are  faithful  to  the  few  cases  confided  to  you,  and  prove 
yourself  worthy  and  well  qualified  for  their  management, 
you  will  soon  be  invited  into  the  higher  walks  and  richer 
fields  of  the  profession.  Having  other  necessary  qualifi- 
cations, you  may  rest  assured  of  the  truth  of  the  maxim 
that  '  if  you  keep  your  office,  your  office  will  keep  you.' 
Punctuality  and  diligence  in  business  will  surely  have  their 
reward.  Sooner  or  later  merit  and  worth  will  be  in  de- 
mand. Qualify  yourself  for  business;  let  it  be  known 
that  in  business  hours  you  will  be  found  at  your  office,  that 
you  will  give  your  clients  good,  candid  advice,  and,  you 
may  rely  upon   it,  business   men   will   surely  find  you  out. 


MICAJAH    HUBBARD    BONNER.  147 

Though  you  may  by  such  advice,  now  and  then,  loose  a  fee 
in  the  particuhir  case,  yet  it  will  be  like  bread  cast  upon 
the  waters,  by  which  you  will  in  the  future  make  friends 
and  reputation  worth  to  you  many  fees.  The  inspired 
writer  says,  '  a  good  name  is  rather  to  be  chosen  than  great 
riches.'  Our  reputation,  as  a  general  rule,  is  not  made  in 
a  day,  but  by  slow  degrees,  insensibly  as  the  dew  is  distilled 
from  the  heavens  —  here  a  little,  and  there  a  little.  It 
grows  with  our  growth  and  strengthens  with  our  strength  ; 
and  one  mishap  may  destroy  that  which  it  required  years 
to  rear.  So  demean  yourself,  then,  that  business  and  a 
good  name  will  follow  you.  Scorn  to  resort  to  what  is 
known  by  the  profession  as  'sharp  practice.'  Else  far 
above  the  lone  pettifogger  and  the  contemptible  shyster, 
who,  jackal-like,  disturb  the  peace  and  quiet  of  the  com- 
munity by  unearthing  and  stirring  up  litigation  and  lending 
their  aid  to  disgraceful  law  suits.  Such  unworthy  and  dis- 
honorable members  have  brought  reproach  upon  our  noble 
profession. 

"  Be  then,  as  a  patriotic  citizen,  faithful  to  the  constitu- 
tion and  laws  of  your  country ;  as  a  member  of  society 
and  of  your  profession,  high-toned  and  honorable  in  your 
deportment  and  dealings  ;  diligent  in  your  studies  and  busi- 
ness ;  always  do  unto  others  as,  you  would  wish  to  be  done 
by,  and  success  and  honor  will  crown  your  efforts." 


148  BENCH  AND  BAR  OF  TEXAS. 


Stockton  p.   Donley. 


The  subject  of  this  memoir  was  born  in  Howard  County, 
Missouri,  on  the  27th  of  May,  1821.  He  was  educated  in 
Kentucky  and  was  admitted  to  the  bar  in  that  State,  from 
which  he  removed  in  1846  to  Texas  and  began  the  practice 
of  law  at  Clarksville,  but  in  1847  established  his  office  at 
Rusk  and  became  the  partner  of  James  M.  Anderson.  Mr. 
Donley  was  a  young  man  of  steady  and  persevering  habits. 
He  rose  rapidly  in  his  profession  and  early  distinguished 
himself,  particularly  as  a  criminal  lawyer.  In  1853  he  was 
elected  over  the  most  formidable  rivalry  to  the  office  of  dis- 
trict attorney  of  the  Sixth  Judicial  District,  and  found  in 
this  position  a  field  inviting  to  his  genius  and  congenial  to 
his  habits  of  mind,  and  he  soon  developed  traits  of  char- 
acter which  gained  him  great  popularity  as  well  as  the  repu- 
tation of  being  the  most  efficient  prosecutor  in  the  State. 
He  possessed  a  thorough  knowledge  of  the  criminal  law, 
and  the  inquisitive,  prompt  and  resolute  manner  in  which 
he  sought  its  enforcement  caused  criminals  to  flee  from  his 
district  as  from  a  glance  at  certain  conviction  and  sure  pun- 
ishment. He  was  not  only  skilled  in  the  legal  art  of  fixing 
crime,  but  he  was  familiar  with  human  nature,  and  an  ex- 
pert in  detecting  and  judging  the  motives  of  men  and  the 
springs  of  human  action,  so  that  it  was  almost  impossible 
for  the  true  history  and  character  of  any  crime  to  escape 
his  investigation.  No  web  of  perfidy  was  ever  so  artfully 
woven  that  he  could  not  unravel  its  threads  and  expose  it  in 
its  naked  depravity,  and  the  celebrated  John  Randolph,  in 
his  palmiest  days,  never  reveled  more  in  the  detection  of 
crim"'  or  lashed  his  guilty  victims  with  more  success.  Yet 
he  po  -essed  a  mild  and  amiable  disposition,  whichbut  gave 
additioi.  1  effect  to  his  powers  ;  and  when  occasion  required 


STOCKTON   P.  DONLEY.  149 

he  would  chastise  his  victims  with  an  air  of  gentility  that 
added  smart  to  the  excoriations  of  his  lash,  until  writhinsr 
in  the  agonies  of  chagrin  and  conscious  guilt  they  would,  if 
permitted,  have  rushed  from  the  court-room,  as  did  the 
clergy  of  Virginia  on  one  occasion  to  escape  the  piercing 
shafts  of  Patrick  Henry.  The  people  hailed  him  as  a  puri- 
fier of  society  and  a  blessing  to  his  district. 

In  1860  he  removed  to  Tyler,  where  he  permanently 
located  and  entered  upon  an  extensive  practice ;  but  when 
the  tocsin  of  civil  war  sounded  in  1861  he  cast  his  lot  with 
the  Confederacy  and  enlisted  as  a  private  soldier  in  Gregg's 
Regiment.  He  was  soon  promoted  to  a  lieutenancy  and  dis- 
played conspicuous  gallantry  at  the  siege  of  Fort  Donel- 
son,  where  he  was  captured  with  his  entire  command.  On 
being  exchanged  he  was,  in  consequence  of  failing  health, 
assigned  to  post  duty,  and  continued  in  that  service  until 
the  close  of  the  war,  when,  without  repine  at  the  loss  of  all 
his  earthly  possessions,  he  vigorously  resumed  the  practice 
of  his  profession  at  Tyler. 

In  1866,  at  the  solicitation  of  his  friends,  he  permitted 
himself  to  be  placed  before  the  people  as  a  candidate  for  a 
seat  upon  the  Supreme  bench,  and  was  elected  by  the  largest 
number  of  votes  that  had  ever  been  cast  in  the  State  for 
that  office.  He  filled  this  position  with  fidelity,  ability  and 
honor  until  he  was  removed  as  an  obstructionist  by  military 
power  in  1868.  He  then  resumed  his  practice  in  copartner- 
ship with  Gov.  O.  M.  Roberts,  and  subsequently  with  John 
L.  Henry,  the  latter  being  his  partner  at  the  time  of  his 
death,  which  occurred  at  Kaufman,  Texas,  on  the  17th  of 
February,  1871. 

Judge  Donley  was  a  lawyer  of  fine  ability,  and,  as  a 
judge  of  the  Supreme  Court,  exhibited  qualities  which 
belong  to  the  highest  judicial  character.  The  same  learning, 
penetration,  energy  and  devotion  to  duty  which  distin- 
guished his  career  at  the  bar,  eminently  marked  his 
character  upon  the  bench.  NotAvithstanding  that  four  years 
of  military  life  had  left  a  blank  in  the  prime  of  his  profes- 
sional life,  he  not  only  proved  himself,  though  fresh  from 
the  distracting  scenes  of  a  long  war,  fully  competent  for 


150  BENCH  AND  BAR  OF  TEXAS. 

the  position  of  Supreme  judge,  but  his  decisions  portray 
an  ability  that  would  honor  the  ermine  of  any  sanctuary 
of  justice.  He  was  a  man  of  many  nol)le  qualities,  and  as 
a  judge  he  was  upright  and  conscientious,  patient  and 
polite  in  his  audience,  and  accorded  a  courteous  considera- 
tion to  all  suitors.  He  was,  moreover,  of  an  energetic  and 
enterprising'nature,  sincere  and  manly  in  his  bearing,  and 
a  general  favorite  among  the  members  of  the  bar.  He  was 
modest  and  retiring  in  his  judicial  demeanor.  He  never 
souo-ht  to  force  his  opinions  upon  others,  yet  maintained 
them  with  a  vigor  and  erudition  that  often  convinced  and 
astonished  his  associates. 

In  politics  he  was  devoid  of  strong  prejudices.  Though  a 
firm  Democrat,  he  belonged  to  that  conservative  school 
which  maintained  an  abiding  faith  in  the  capacity  of  the 
American  people  for  self-government. 

While  he  was  not  an  orator,  so  far  as  that  quality  consists 
of  skill  in  the  use  of  polished  phrases  and  ornation  of 
speech,  his  arguments  were  always  logical  and  weighty 
with  the  pith  of  sound  judgment ;  and  he  was  always  ready 
to  maintain  his  position  with  the  naked  sword  of  reason. 

His  domestic  life  was  of  an  exemplary  order.  His 
highest  aim  w^as  to  elevate  his  family  to  the  highest  attain- 
ment of  virtue  and  happiness.  He  was  first  mariied  in 
1854  to  Miss  Judith  M.  Evans,  of  Marshall,  and  she  having 
died,  he  was  again  married  in  1867  to  Mrs.  Emma  Slaughter, 
of  Tyler,  and  this  excellent  lady  still  survives  him. 

Judge  Donley  was  a  man  of  but  few  faults,  and  his 
weakness  weighed  but  little  in  the  scale  of  his  greatness. 
They  were  dimmed  and  obscured  by  the  full  blaze  of  his 
resplendent  virtues,  and  his  life  as  a  lawyer,  a  judge  and  a 
patriot,  is  worthy  of  emulation,  and  deserves  a  proud  niche 
in  the  column  of  Texas  eminence. 

He  was  interred  at  Tyler,  and  the  funeral  procession  was 
one  of  the  largest  and  most  imposing  ever  witnessed  at  that 
-place,  which  fitly  indicated  the  love  and  esteem  in  which  he 
was  held  by  his  people. 


^^^c?  .-^^^O^^^^^ 


AMOS   MORRILL.  151 


AMOS    MORRILL, 


The  distinguished  subject  of  this  memoir  was  born  at 
Salisbury,  Mass.,  on  the  25th  of  August,  1809.  His  father 
was  a  native  of  the  same  place,  and  was  a  descendent  of 
an  old  Puritan  family  which  emigrated  from  England  to 
Massachusetts  at  an  early  period  of  its  history,  and  from 
which  the  distino^uished  men  of  that  name  in  New  England 
likewise  descended. 

The  educational  advantages  of  young  Morrill,  though 
mainly  due  to  his  own  exertions,  were  ample  and  liberal. 
He  was  an  energetic,  aspiring  youth,  and  taught  school  dur- 
ing the  winter  months  to  aid  in  defraying  the  expenses  of  a 
collegiate  course,  which  he  completed  with  honor  and  dis- 
tinction. He  was  graduated  from  Bowdoin  College,  in 
Maine,  in  the  class  of  1834,  while  the  poet,  Longfellow, 
was  a  professor  in  that  institution;  and  having  no  fortune 
but  his  education,  and  no  reliance  but  his  own  exertions, 
the  qualities  of  his  nature  dictated  adventure,  and  he  em- 
igrated to  Nashville,  Tenn.;  but  finding  no  situation  there 
and  beino-  short  of  means,  he  soon  afterwards  went  to 
Murfreesboro.  There  he  found  employment  as  a  teacher 
and  acquired  popularity  by  the  new  and  successful  methods 
of  instruction  which  he  adopted.  But  his  aspirations  were 
not  yet  satisfied,  and,  having  continued  in  this  occupation 
two  years,  during  which  he  read  law  in  his  leisure  moments, 
he  went  back  to  Massachusetts  and  studied  law  in  the  office 
of  Eobert  Cross,  a  distinguished  lawyer  of  Amesbury ;  and 
having  acquired  a  thorough  knowledge  of  the  rudiments  of 
common  law  he  returned  to  Murfreesboro,  obtained  his 
license  and  began  the  practice  of  his  profession  at  that  place. 
But  his  ambitious  and  adventurous  spirit  yet  coveted 
a  brighter  and  a   richer  field,  and  in  1838  he  removed  to 


152  BENCH  AND  BAR  OF  TEXAS. 

Clarksville,  Texas,  where  he  pursued  the  study  and  practice 
of  law,  and  by  his  untiring  industry  and  indomitable  energy 
soon  took  his  stand  at  the  head  of  the  bar  at  that  place, 
which,  even  at  that  early  day,  presented  no  mean  array  of 
legal  talent.  This  portion  of  Texas  at  that  time  swarmed 
with  outlaws  from  the  States,  and  the  position  of  a  young 
lawyer,  who  necessarily  comes  in  contact  with  all  classes, 
was  one  of  constant  peril  and  temptation.  But  young  Mor- 
rill was  equal  to  every  emergency,  and  it  is  said  that  on 
more  than  one  occasion  his  presence  of  mind,  firmness  and 
intrepidity  saved  his  life  while  grappling  with  the  lawlessness 
which  reigned  over  the  country. 

He  was  here  victorious  also  in  a  more  happy  respect.  He 
was  married  at  Clarksville  in  1843  to  Miss  M.  A.  Dickson, 
who  survives  him.  She  is  one  of  the  most  accomplished 
ladies  the  author  has  met  in  Texas,  and,  if  the  truth  was 
known,  was  one  of  the  chief  agencies  of  the  distinction  and 
success  of  her  husband. 

After  his  marriage  he  admitted  J.  J.  Dickson,  the  brother 
of  Mrs.  Morrill,  to  a  copartnership  in  his  practice,  which 
continued  until  1856,  when  Mr.  Morrill  removed  to  Austin 
and  associated  in  practice  with  the  late  Governor  A.  J. 
Hamilton.  This  firm  became  celebrated  throughout  the 
State,  and  continued  to  grow  in  popularity  and  success 
until  the  outbreak  of  the  civil  war.  Mr.  Morrill  was  an 
old  line  Whig  and  opposed  secession.  He  was  a  conscien- 
tious and  devoted  Unionist,  and  his  views,  which  he  main- 
tained with  great  firmness  and  candor,  having  in  a  measure 
estranged  his  old  friends  who  were  ardent  in  their  advocacy 
of  extreme  measures  for  the  redress  of  Southern  grievances, 
his  position  became  unpleasant,  and  in  1862  he  left  his 
home  in  Austin  and  retired  to  Mexico,  thence  he  went  to 
New  Orleans,  and  afterward  sought  his  old  home  in  Massa- 
chusetts. During  the  last  year  of  the  war  he  accepted  a 
position  .in  the  custom-house  at  New  Orleans,  where  he 
anxiously  awaited  the  time  when  he  could  return  to  his 
home  in  Texas,  and  when  peace  was  proclaimed  he  returned 
to  Austin  intrusted  with  important  business  interests  by 
the  merchants  of  New  York  and  Boston. 


AMOS    MORRILL.  153 

In  1868  he  was  appointed  chief  justice  of  the  Supreme 
Court  of  Texas,  and  held  that  office  during  the  space  of  two 
years.  In  1872  he  was  appointed,  by  President  Grant,  judge 
of  the  United  States  District  Court  for  the  Eastern  District  of 
Texas,  upon  which  he  settled  at  Galveston,  where  he  purchased 
an  elegant  residence,  and  devoted  his  judicial  vacations 
to  the  study  of  maritime  law  and  admiralty,  and  made  him- 
self master  of  that  intricate  branch  of  Federal  jurispru- 
dence. He  presided  in  the  Federal  court  nearly  twelve 
j'ears,  during  which  many  important  cases,  arising  out  of 
the  new  order  of  things  occasioned  by  the  war,  came  before 
him  for  adjudication,  and  it  was  on  the  reversal  of  his  de- 
cision ill  the  case  of  the  United  States  v.  Legrand,  by  the 
Supreme  Court  of  the  United  States,  that  the  Civil  Rights 
Act  was  declared  unconstitutional.  But  he  was  a  fine  con- 
stitutional lawyer  and  was  highly  complimented  by  Judge 
Bradley  for  the  almost  uniform  correctness  of  his  decisions. 
It  is  said  that  on  one  occasion  when  Judge  Bradley  was 
presiding  in  the  Circuit  Court  at  Galveston  he  had  prepared 
a  decision,  but  before  declaring  it,  read  it  to  Judge  Morrill, 
who  dissented  and  gave  his  reasons.  Judge  Bradley  was 
struck  Avith  their  force,  and  upon  advisement,  yielded  to 
Judge  Morrill's  views,  and  rendered  his  opinion  accord- 
ingly. 

At  the  close  of  the  spring  term  of  the  Federal  court  at 
Galveston,  in  1883,  Judge  Morrill,  in  consequence  of  a 
severe  attack  of  neuralgia  in  his  face  and  eyes,  and  other- 
wise failing  health,  determined  to  resign  his  position  upon 
the  bench,  and  communicated  his  intention  to  his  friends  ; 
upon  which  the  following  correspondence  occurred  between 
him  and  the  leading  members  of  the  the  Galveston  bar;  — 

Hon.  Amofs  Morrill,  Judge  of  the  U.  S.  District  Court  for 
Eastern  District  of  Texas,  Galveston  — 

Dear  Sir  :  Our  attention  having  recently  been  called  to 
the  report  that  you  are  contemplating  a  withdrawal  from 
the  active  duties  of  your  position  as  judge  of  the  United 
States  District  Court,  we,  the  undersigned  members  of  the 
Galveston  bar  and  officers  of  the  United  States  Circuit  and 


154  BENCH    AND    BAR    OF    TEXAS. 

District  Courts  in  and  for  the  Eastern  District  of  Texas, 
apprehending  that  there  may  be  foundation  for  the  rumor, 
hasten  to  make  linown  to  you  our  sincere  regret  that  you 
should  have  in  contemplation  a  step  that  will  sever  the 
agreeable  official  relations  existing  between  yourself  and 
us  ;  and  to  express  the  hope  that  you  may,  on  reflection, 
find  it  not  inconsistent  with  those  considerations  which  are 
persuading  you  to  a  different  course,  to  continue  upon  the 
bench  in  the  official  position  which  you  now  hold,  and  which 
you  have,  for  more  than  ten  years,  filled  with  an  earnest 
fidelity  to  the  duties  it  imposes. 

[Signed]  Your  obedient  servants, 

W.  P.  Ballinger,  George  W.  Davis, 

M.  F.  MoTT,  S.  W.  Jones, 

J.  W.  Terry,  George  E.  Mann, 

Joseph  Franklin,  Walter  Gresham, 

L.  MussiNiA,  P.  C.  Baker, 

Joseph  H.  Willson,  C.  S.  Cleveland, 

M.  E.  Kleburg,  William  Sorley, 

A.  Sampson,  W.  Hanscom, 

John  W.  Harris,  Branch  T.  Masterson, 

Scott  &  Levi,  Henry  Sayles, 

H.  R.  Mann,  L.  E.  Trezevant, 

R.  V.  Davidson,  B.  Boscatt, 

F.  D.  Minor,  T.  N.  Waul, 

John  C.  Walker. 

To  which  Judge  Morrill  returned  the  following  reply :  — 

Oefice  of  U.  S.  District  Judge,  ^ 
Galveston,  April  5th,  1883.       5 

Messrs.  S.  W.  Jones,  W.  P.  BaUinger,  George  E.  Mann^ 
M.  F.  Mott,  and  others.  Members  of  the  Galveston  Bar: 

Your  communication  stating  that  there  is  a  report  that  I 
am  seriously  contemplating  a  withdrawal  from  the  active 
duties  of  my  position  as  judge  of  the  Eastern  District  of 
Texas,  has  been  handed  to  me  by  your  committee,  Messrs. 
Waul  and  Jones. 

The  laws  of  the  United  States  seem  to  assume  that  where 


AMOS    MORRILL.  155 

a  man  has  arrived  at  the  age  of  seventy  years,  his  mental 
or  physical  powers,  or  both,  diminish  to  such  a  degree  that 
he  is  disqualified  to  hold  a  judicial  office,  and  though  there 
may  be  prominent  exceptions  to  this  assumption,  yet  as  a 
general  rule  it  is  believed  to  be  well  founded.  And  where 
there  is  a  safe  way  and  a  doubtful  one,  prudence  would 
require  the  safe  way  to  be  taken. 

After  due  consideration,  I  am  inclined  to  believe  that  my 
failing  health  requires  that  I  should  soon  resign  the  position 
which  for  the  past  eleven  years  has  afforded  me  the  greatest 
pleasure  in  my  official  intercourse  with  the  bar  at  Galveston. 
Thanking  you  kindly  for  your  complimentary  letter, 
I  remain  sincerely  yours, 

Amos  Morrill. 

He  soon  after  this  sent  up  his  resignation,  and  repaired 
to  California  with  the  hope  of  being  benefited  by  the  mild 
and  uniform  climate  of  the  Pacific  Slope,  but  on  his 
return  was  detained  some  time  at  Denver  by  an  attack  of 
severe  illness.  In  October,  while  sojourning  temporarily 
at  Knoxville,  Tennessee,  he  was  informed  that  his  resigna- 
tion had  not  been  accepted  at  Washington,  and  that  there 
would  be  no  November  term  of  the  District  Court  at  Gal- 
veston unless  held  by  him.  He  returned  there  and  held 
the  term,  which  closed  his  judicial  career. 

On  the  adjournment  of  the  court,  he  retired  with 
somewhat  improved  health  to  Austin,  where  he  spent  the 
winter,  but  with  the  return  of  spring  began  a  steady  decline, 
and  though  possessing  his  habitual  cheerfulness,  it  was 
evident  to  his  friends  that  the  number  of  his  days  were 
few.  He  died  on  the  5th  of  March,  1884,  in  the  seventy- 
fourth  year  of  his  age. 

Judge  Morrill  bore  throughout  his  long  career  the  repu- 
tation of  a  man  of  strong  convictions  and  stern  uprightness 
of  purpose.  His  name  is  prominently  associated  with  the 
history  of  Texas  from  the  time  of  its  annexation  to  the 
Union  to  the  day  of  his  death.  He  grew  with  its  growth, 
and  ripened  with  its  development,  and  as  an  old  line  Whig 
and  strong    Unionist,  he   was  bold  and  outspoken   in  his 


156  BENCH  AND  BAR  OF  TEXAS. 

opposition  to  its  secession  from  the  Union.  He  was  familiar 
with  its  laws  and  procedure  from  their  origin  throughout  all 
the  phases  of  their  expansion,  and  as  a  lawyer,  w:>s  one  of 
the  most  successful  practitioners  that  the  bar  of  Texas  has 
ever  produced.  He  had  studied  law  both  as  a  science  and 
an  art.  He  had  studied  its  application  as  wel!  as  its  doc- 
trine, and  knew  how  to  make  the  best  use  of  his  knowledge. 
His  mind  was  active  and  vigorous,  and  readily  grasped 
every  suggestion  of  reason.  He  delighted  to  delve  in  the 
rugged  fields  of  the  profession,  and  explore  the  musty 
alcoves  of  its  garnered  wisdom,  and  he  had  gathered  ample 
resources  of  precedent  and  parity  from  every  feature  of 
legal  history. 

As  chief  justice  of  the  Supreme  Court  of  Texas,  his 
decisions  and  influence  greatly  aided  in  moulding  its  juris- 
prudence into  harmony  with  the  political  changes  and  new 
attitude  which  the  civil  war  produced  and  established  between 
the  States  and  the  Federal  government.  He  occupied  this 
position  during  a  period  when  many  novel  questions  arose 
pertaining  to  the  innovations  claimed  to  have  been  effected 
by  the  Constitutional  amendments  and  reconstruction  acts  ; 
and,  while  he  was  at  all  times  a  staunch  supporter  of 
Federal  supremacy  and  the  views  of  his  party,  his  judicial 
deportment  was  that  of  a  just  and  upright  judge  and  a 
patriot. 

But  it  was  as  a  judge  of  the  Federal  court  that  he  won 
his  brightest  laurels.  It  was  here  that  his  fearlessness  of 
character,  his  uncompromising  regard  for  truth  and  justice, 
and  his  extensive  knowledge  of  law,  were  most  strikingly 
exemplified.  Having  an  important  seaport  in  his  district, 
many  important  cases  involving  intricate  and  varied  ques- 
tions of  commercial  law  and  admiralty  w^ere  brought  before 
him  during  his  long  course  upon  the  Federal  bench  ;  but 
the  firmness,  impartiality,  ability  and  love  of  justice, 
which  characterized  his  decisions,  caused  them  to  receive 
always  the  homage  of  acquiescence  and  satisfaction. 

Subsidiary  to  his  knowledge  and  love  of  justice,  he 
cherished  a  devotion  to  the  duties  of  his  office  and  a  lofty 
pride  in  performing  them  in  the    most    eminent   manner. 


AMOS    MORRILL.  157 

Hence,  his  decisions  were  rarely  reversed,  and  elicited 
from  Mr.  Justice  Bradley  the  compliment  that  if  all  the 
Federal  judges  were  like  him  there  would  be  no  need  of  his 
making  the  circuit  to  hear  appeals. 

That  Mr.  Justice  Woods  had  also  a  high  opinion  of  Judge 
Morrill,  both  as  a  man  and  as  a  judge,  is  warmly  mani- 
fested in  a  letter  of  condolence  addressed  to  Mrs.  Morrill 
upon  the  death  of  her  husband.  He  says  :  *«  My  long  asso- 
ciation with  him  as  his  colleague  in  the  public  service,  gave 
me  an  opportunity  to  learn  his  sterling  qualities.  I  have 
always  found  him  to  be  the  soul  of  honor,  the  friend  of 
justice,  and  the  defender  of  the  right.  He  had  large  ad- 
ministrative ability,  was  capable  and  courageous,  and 
feared  no  man.  As  a  friend,  I  know  he  was  faithful,  sin- 
cere and  true." 

Blended  with  the  fine  legal  mould  of  his  mind  and  the 
sterner  traits  of  his  character,  Judge  Morrill  possessed  a 
nature  tenderly  sensitive  to  the  beautiful  and  the  senti- 
mental. He  was  fond  of  poetry,  romance  and  music,  and 
delighted  in  quenching  his  aesthetic  thirst  in  the  Pierian 
springs. and  in  the  fountains  of  Parnassus.  He  was  re- 
markably familiar  with  Shakespeare  and  Scott,  and  if 
almost  any  line  of  either  of  these  authors  was  quoted  he 
could  repeat  the  next.  He  was  also  familiar  with  the 
Bible,  and  thought,  like  the  venerable  Macklin,  who,  on 
entering  his  son  as  a  student  of  law  at  the  Temple,  en- 
joined upon  him  to  make  the  Bible  his  first  book  of  study. 
"The  Bible,  Mr.  Mackhn,  for  a  lawyer?"  asked  the 
learned  gownsman.  "  Yes,  sir,"  replied  Macklin,  "  it  is 
the  properest  and  most  scientific  book  for  an  honest  lawyer, 
as  there  he  will  find  the  foundation  of  all  law  and 
morality." 

In  his  social  and  domestic  relations.  Judge  Morrill  was 
kind,  genial  and  affectionate,  and  he  endeavored  to  make 
all  around  him  happy.  He  had  the  capacity  of  adapting 
himself  to  any  company  in  which  he  might  be  thrown, 
which  rendered  him  popular  with  all  classes  and  enhanced 
his  professional  success.  He  took  great  pleasure  in  the 
enjoymsnt  of  young  people,  and  even  in  the  latter  part  of 


158  BENCH  AND  BAR  OF  TEXAS. 

his  life  often  participated  in  their  amusements.  He  never 
had  any  children  of  his  own,  but  his  house  was  the  home  of 
many  others,  for  which  he  provided  with  a  generous  liber- 
ality.  He  assisted  in  the  education  of  seven,  four  of  whom 
were  dependent  entirely  upon  him  for  their  advantages. 

Such  a  character  could  not  long;  remain  under  the  ban  of 
the  ruling  popular  sentiment,  on  account  of  a  mere  differ- 
ence of  political  views,  and  long  before  his  death  the  sacri- 
fices which  he  had  made  for  the  sake  of  conscientious 
convictions  and  honest  principles  were  conceded  by  his 
bitterest  political  foes  to  be  virtues  worthy  of  esteem 
rather  than  qualities  deserving  condemnation.  But  at  his 
death  all  political  animosity  sunk  beneath  the  wellings  of 
veneration,  and  reflecting  only  upon  his  great  ability  as  a 
judge  and  his  purity  as  a  man, 

His  friends  estranged  but  yesterday,  in  sorrowing  awe  return 
To  gather  up  his  greatness  into  history's  golden  urn. 

On  the  death  of  Judge  Morrill  the  bar  of  his  district  paid 
his  memory  the  highest  tribute  of  respect.  The  following 
resolutions  were  adopted  ;  — 

*'In  the  Circuit  and  District  Courts  of  the  United  States  in 
and  for  the  Eastern  District  of  Texas,  at  Galveston  — 

[From  the  minutes  of  said  courts,  March  term,  April 
4th,  1884.] 

"  T.  N.  Waul,  on  behalf  of  the  bar  of  Galveston,  this 
day  appeared  in  open  court,  and  presented  the  following 
proceedings  and  resolutions,  which  are  here  entered  of 
record  by  direction  of  the  court,  to  wit:  — 

"  'At  a  meeting  of  the  members  of  the  bar,  held  at  the 
Supreme  Court  room  yesterday,  to  take  such  action  as 
might  be  deemed  approproate  to  evince  their  respect  for 
the  late  Judge  Morrill,  the  following  proceedings  were  had  : 
General  T.  N.  Waul  was  called  to  the  chair,  and  Eobert  G. 
Street  was  requested  to  act  as  secretary.  On  motion  of 
Honorable  W.  P.  Baliinger,  a  committee  was  appointed  to 
prepare  suitable  resolutions. 


AMOS    MORRILL.  159 

"'The  committee  presented  the  following  resolutions, 
which  were  unanimously  adopted  :  — 

"  '  Resolved,  That  the  members  of  the  bar  of  the  United 
States  Courts  at  Galveston  desire  to  express  their  deep  sor- 
row caused  by  the  death  of  the  Honorable  Amos  Morrill, 
who  had  been  for  more  than  ten  years  the  judge  of  this 
Federal  district. 

"  '  J^eso^veJ,  That  the  relations  between  Judge  Morrill 
and  the  bar  at  Galveston,  during  all  that  period,  were 
marked  by  urbanity,  consideration  and  kindness  on  the  part 
of  Judge  Morrill,  inspiring  permanent  feelings  and  recol- 
lections of  regard  and  esteem  on  the  part  of  the  bar  toward 
him,  of  which  we  desire  to  preserve  lasting  record. 

"  ^Resolved,  That  familiar  as  he  was  with  Texas  law  and 
procedure  from  their  commencement,  one  of  the  oldest 
and  most  successful  lawyers  remaining  in  the  State,  and  for 
many  years  a  judge  of  our  Supreme  Court,  Judge  Morrill 
brought  to  the  Federal  bench  the  largest  experience  and  a 
devotion  and  pride  in  the  duties  of  the  station  which  he 
filled  to  the  full  measure  of  his  ability,  with  impartiality, 
firmness  and  justice. 

"  '  Resolved,  That  we  shall  always  cherish  the  memory  of 
Judge  Morrill  as  a  good  citizen,  friend  and  neighbor,  with 
whom  for  many  years  our  relations  were  most  interesting 
and  pleasant. 

'<  '  Resolved,  That  we  tender  to  his  widow,  Mrs.  Morrill, 
well  known  to  us  to  be  eminently  worthy  of  the  profoundest 
regard,  our  earnest  and  warmest  sympathy,  and  that  a  copy 
of  these  resolutions,  signed  by  the  president  and  secretary, 
be  transmitted  to  her. 

"  *  Resolved,  That  these  proceedings  be  presented  by  the 
president  of  this  meeting  to  the  United  States  District  and 
Circuit  Courts,  now  in  session,  with  the  request  that  they 
be  placed  on  the  records  of  the  courts. 

"  '  W.  P.  Ballinger, 
"  '  J.  T.  Brady, 
<*  *  S.  W.  Jones, 


tk  ( 


Committee. 


» »» 


160  BENCH  AND  BAR  OF   TEXAS. 


THOMAS    H.     DUVAL. 


This  great  and  good  man  was  born  in  Buckingham  County, 
Virginia,  on  the  4th  of  November,  1813,  and  was  a  descend- 
ant of  one  of  the  old  Huguenot  families  which  fled  from 
France  to  Virginia  in  consequence  of  the  revocation  of  the 
Edict  of  Nantes.  His  father  afterward  removed  his  family 
to  Nelson  County,  Kentucky,  where  he  became  a  noted 
lawyer  and  politician,  and  W'hile  quite  a  young  man,  was 
one  of  the  representatives  of  that  State  in  the  United 
•States  Congress.  He  subsequently  became  the  famous 
Governor  Duval,  of  Florida,  having  been  appointed  the  first 
Governor  of  that  Territory  after  its  acquisition  from  Spain. 

Thomas  received  his  education  in  St.  Joseph's  College  at 
Bardstown,  from  which  he  was  graduated  in  1833.  He 
afterward  studied  law  in  the  office  of  Charles  A.  Wickliff, 
who  was  Postmaster-General  during  President  Tyler's 
administration,  and  received  both  from  his  distinguished 
father  and  eminent  preceptor  the  impression  of  those  pro- 
fessional qualities  which  so  highly  adorned  his  own  career. 
In  1835  he  removed  to  Tallahassee,  Florida,  where  he  was 
admitted  to  the  bar  and  began  the  practice  of  his  profes- 
sion ;  and  having  served  as  circuit  clerk  of  Leon  County, 
and  ex-oficio  clerk  of  the  Court  of  Appeals,  he  was,  in  1843, 
appointed  by  the  President  secretary  of  the  Territory  of 
Florida.  Li  1845  he  emigrated  to  Austin,  Texas,  where  he 
resided  during  the  remainder  of  his  life.  In  1846  he  was 
appointed  one  of  the  reporters  of  the  Supreme  Court,  and 
in  1851  was  elected  Secretary  of  State.  In  1855  he  was 
elected  judge  of  the  Second  Judicial  District,  and  was 
re-elected  in  1856.  When  the  western  district  of  Texas 
was  created  in  1857,  he  was  appointed  judge  of  the  United 


THOMAS    H.  DUVAL.  161 

States  court  for  that  district,  and  held  this  position  until 
the  outbreak  of  the  civil  war. 

Judge  Duval,  though  at  that  time  a  Jacksonian  Democrat, 
was  bitterly  opposed  to  secession.  He  bore  an  intense  and 
unswerving  devotion  to  the  Union,  and  considered  the  Con- 
stitution as  a  palladium  of  protection  to  every  interest  and 
every  section  of  the  country.  He  was  honest  and  consci- 
entious in  his  convictions.  Through  all  the  varied  spheres 
of  his  life  not  a  breath  of  suspicion  or  doubt  ever  assailed 
the  purity  of  his  motives  or  the  integrity  of  his  acts  ;  but 
in  all,  he  maintained  an  exalted  position  in  the  esteem  of 
his  associates,  and  in  the  confidence  and  afi'ections  of  the 
people.  While,  acting  in  accordance  with  his  views,  he 
absented  himself  from  the  State  during  the  existence  of  a 
war,  the  inception  of  which  he  abhorred,  he  was  among  the 
first  to  return  in  1805,  and  immediately  devoted  his  influ- 
ences and  his  energies  to  the  amelioration  of  the  condition 
of  his  people.  The  editor  of  the  Galveston  JVeivs,  says  : 
"  When  he  arrived  at  Galveston,  just  after  the  breaking  up 
of  the  Confederate  camps  in  1865,  and  when  the  interior 
of  the  State  was  the  theater  of  anarchy,  he  asked  the  writer 
whether  it  would  be  safe  for  him,  a  Union  man,  to  proceed  to 
Austin  with  his  family.  The  answer  was,  that  it  would  be 
so  unless  he  had  private  enemies.  He  said  that  he  did  not 
think  he  had  one  in  the  world.  He  returned  to  his  home 
and  was  welcomed  b}^  his  old  friends  of  every  shade  of 
opinion." 

Judge  Duval  was  a  profound  lawyer,  and  his  success  at 
the  bar  was  assured  by  many  of  the  loftiest  traits  that 
adorn  the  profession.  He  was  endowed  by  nature  with  an 
intellect  singularly  adapted  to  the  discernment  of  truth, 
however  veiled  in  the  speciousness  of  reason,  or  enveloped 
in  the  delusions  of  circumstance  ;  and  his  mind  was  embel- 
lished by  literary  attainments  of  a  high  order.  He  early 
learned  that  application,  promptness  and  fidelity  were  the 
qualities  which  insure  professional  success,  and  with  these 
he  brought  to  the  bar  an  honorable  ambition  and  a  zealous 
purpose  which  kindled  and  prompted  his  genius  to  the 
noblest  exertion  in  every  sphere  in  which  his  professional 
11 


162  BENCH  AND  BAR  OF  TEXAS. 

services  were  employed.  His  industry  was  indefatigable; 
and  so  versatile  was  his  capacity  for  usefulness,  that  no 
sphere  of  public  duty  seemed  foreign  to  its  adaptation  or 
incompatible  with  its  highest  attainment.  While  he  pos- 
sessed no  one  dazzling  feature  of  character,  he  presented 
that  full  orb  of  virtue,  ability  and  usefulness  which  is 
rendered  effulgent  by  its  uniqueness  and  uniformity. 

As  reporter  of  the  Supreme  Court,  his  powers  of  analy- 
sis, his  penetration  and  discriminating  judgment  are  con- 
spicuously exemplified  in  the  correctness  of  his  interpretation 
and  in  the  clear  and  concise  method  of  his  compendiums 
and  syllabi;  and  as  Secretary  of  State,  his  official  conduct 
was  marked  by  the  highest  order  of  competency,  by  an 
ardent  devotion  to  duty,  and  by  an  efficiency  which  pro- 
moted the  public  interest  and  adorned  the  administration  of 
which  he  was  a  component. 

His  energy  and  integrity,  his  knowledge  of  law,  and  his 
sound  views  of  justice  and  equity  made  him  an  excellent 
judge  ;  and  his  long  judicial  career  was  characterized  by  an 
uprightness,  impartiality  and  love  of  justice  which  estab- 
lished a  striking  similarity  and  invites  a  just  comparison 
between  him  and  Sir  Mathew  Hale.  His  decisions  are 
models  of  plain  and  precise  enunciation,  and  of  perspicuous 
reasoning.  He  was  firm  in  his  convictions,  yet  tolerant  of 
the  opinions  of  others,  and  never  obtruded  or  urged  the 
reception  of  his  views  as  a  condition  of  his  courtesy  and 
regard. 

He  was  a  man  of  exemplary  rectitude  in  all  the  relations 
of  life  —  a  fond  husband,  an  affectionate  father,  a  warm 
friend,  and  a  great  favorite  with  the  members  of  the  bar. 
Like  most  great  lawyers,  and  particularly  great  judges,  he 
took  especial  interest  in  young  men  who  began  the  practice 
of  law  before  him,  and  afforded  them  every  opportunity 
and  advantage  which  a  firm  judicial  impartiality  would 
permit. 

He  was  married  in  1839  to  Miss  Laura  P  Duval,  daughter 
of  Captain  Duval,  of  the  United  States  army,  a  lady  es- 
teemed as  one  of  the  truest  and  noblest  of  her  sex,  and 
who  no  doubt  wove  the  briofhtest  threads  in  the  woof  of  his 


THOMAS   H.  DUVAL.  163 

life.  They  reared  an  interesting  and  accomplished  family, 
and  one  of  their  daughters,  who  married  Judge  C.  S.  West, 
now  of  the  Supreme  Court,  was  a  lady  of  decided  poetical 
genius. 

Judge  Duval  had  two  brothers  who  were  in  Fannin's 
command  when  it  was  captured  at  Goliad  in  1836.  One  of 
them  was  among  the  victims  of  that  massacre.  The  other 
made  his  escape  by  feigning  death  while  the  other  prisoners 
were  being  shot,  and,  after  many  dangers  and  hardships, 
rejoined  the  Texan  army,  and  hud  an  opportunity  of  aveng- 
ing the  death  of  his  brother. 

In  the  fall  of  1880  Judge  Duval,  now  full  of  years  and 
in  feeble  health,  in  company  with  his  aged  wife,  visited  his 
daughter,  who  had  married  Captain  C.  S.  Roberts,  of  the 
United  States  army,  and  was  residing  at  Fort  Omaha, 
Nebraska.  Here  he  was  stricken  with  his  last  illness,  and 
died  on  the  10th  of  October,  1880.  His  remains  were 
brought  to  Austin  for  burial,  where  they  rest  by  the  side  of 
many  who  shared  the  ambitions,  the  aspirations  and  the 
achievements  of  his  long  and  useful  life. 

His  remains  were  i»eceived  and  accompanied  to  their  last 
resting  place  by  a  committee  of  distinguished  gentlemen  in 
pursuance  of  the  following  resolutions  adopted  at  a  meeting 
of  the  Austin  bar,  convened  to  do  honor  to  his  memory  : 

'"'■Resolved^  That  in  the  public  and  professional  life,  the 
labors  and  honors  of  Judge  Duval,  all  those  qualities  of 
head  and  heart  are  found,  which  make  up  the  good  citizen, 
the  honorable  and  conscientious  lawyer  and  the  able  upright 
and  exalted  judge.  In  all  the  positions  which  he  held  his 
kindness  to  his  associates,  his  justice  to  all,  his  purity  and 
goodness  of  heart,  his  unflinching  fidelity  to  the  right,  even 
in  times  of  fiercest  political  contests,  and  the  contribution 
of  his  best  powers  to  the  discharge  of  every  duty,  secured 
for  him  the  permanent  esteem  and  affection  of  his  fellow- 
citizens.  If  not  brilliantly  great,  he  was  nevertheless 
great ;  for  to  say  of  one  who  sat  nearly  a  quarter  of  a  cen- 
tury upop  the  bench,  as  can  be  said  of  him,  that  he  was 
fully  adequate  in  ability  and  learning  to  every  judicial  task  ; 
that  he  was  always  calm,  patient  and  laborious,  never  an- 


164  BENCH  AND  BAR  OF  TEXAS. 

nouncing  his  conclusions  until  thoroughly  comprehending 
all  the  points  of  the  case;  that  he  was  impartial  and  un- 
varying in  his  courtesy,  sustaining  the  most  fraternal  rela- 
tions to  the  officers  of  his  court  and  bar,  commanding  no 
less  their  esteem  than  their  love,  it  is  to  pay  a  tribute  which 
belongfs  alone  to  true  o-reatness. 

^'■.Resolved,  That  the  members  of  the  bar  and  officers  of 
the  court  attend  the  funeral  of  the  distinguished  deceased 
in  a  body,  and  that  the  chairman  of  this  meeting  appoint  a 
committee  of  twelve  members  of  the  bar  to  meet  his  re- 
mains on  their  arrival  in  this  city." 

The  distinguished  gentlemen  who  bore  his  pall  to  the 
grave  and  with  solemn  reverence  tossed  the  cold  clods  upon 
his  coffin  consummated  the  last  act  which  the  honors  of  the 
world  could  perform  for  the  mortal  parts  of  a  great  and 
good  man;  but  turning  away  from  these  mournful  obsequies 
we  find  him  still  living  in  the  good  he  accomplished,  in  the 
affections  of  his  people,  and  in  the  records  of  his  country. 


M.  D.  ECTOR.  165 


M.  D.    ECTOR. 


Pericles,  in  his  famous  funeral  oration,  pponounced  in 
honor  of  those  who  fell  in  the  Samian  war,  endeavored  in 
an  elegant  manner  to  impress  the  patriotism  of  the  dead  as 
an  example  of  glory  upon  the  living;  that  their  deaths 
were  a  joint  and  hallowed  offering  upon  the  altars  of  their 
country  ;  and  that,  while  collectively  they  gave  to  it  their 
lives,  individually  they  received  that  renown  which  never 
grows  old,  and  the  most  distinguished  tomb  they  could 
have  —  the  urn  of  glory  which  they  left  behind  them,  the 
subject  of  everlasting  record ;  that  for  illustrious  men  the 
whole  earth  is  the  sepulchre,  and  not  only  do  the  inscrip- 
tions upon  columns  erected  in  their  own  country  preserve 
their  memories,  but  in  all  lands  there  dwells  for  them  an 
unwritten  memorial  of  the  heart,  more  durable  than  any 
material  monument. 

There  is  not  an  instance  in  the  history  of  this  world  in 
which  any  class  of  individuals  exhibited  a  loftier  patriotism, 
a  more  glowing  public  pride  or  a  more  splendid  gallantry 
than  that  displayed  during  the  civil  war  by  the  members  of 
the  bar  throughout  the  South.  No  sooner  had  the  first 
cloud-caps  of  the  coming  struggle  heaved  in  view,  than 
their  briefs  were  left  unargued,  their  books  were  laid  away, 
their  offices  were  closed,  and  with  drawn  swords  they  were 
found  in  every  town,  in  every  village  and  in  every  hamlet, 
marshalling  their  countrymen  in  the  array  of  battle,  organ- 
izing companies  and  regiments,  encouraging  the  brave  and 
shaming  the  timid,  leading  the  advancing  files,  swelling  the 
ranks  or  heading  the  hurrying  columns  of  the  Confederacy. 
Everywhere  and  in  all  positions,  they  met  the  issue  with  a 
determination  and  devotion  that  challenged  comparison  in 
the  annals;  of  ))atriotism. 


166  BENCH  AND  BAR  OF  TEXAS. 

Many  of  them  had  exhausted  theii'  pens  through  the 
press  and  their  powers  of  speech  upon  the  hustings  and  in 
the  halls  of  legislation,  in  argument  of  the  great  questions 
which  were  now  certified  by  the  voice  of  honor  and  of 
patriotism  to  the  arbitrament  of  war.  Before  this  tribunal 
they  were  prepared  to  vindicate  and  seal  with  their  blood 
the  scroll  of  principles  which  they  advocated,  and  they  at 
once  sunk  the  lawyer  in  the  patriot,  the  patriot  in  the 
soldier,  and  the  soldier  in  the  martyr  to  what  they  conceived 
to  be  their  sacred  rights  and  the  honor  of  their  country. 
Among  these  there  were  few  more  prominent  and  distin- 
guished than  the  gentleman  who  forms  the  subject  of  this 
memoir.  He  promptly  accepted  the  issue  of  battle,  and 
his  sword  flashed  in  the  thickest  of  the  fight. 

Mathew  Duncan  Ector  was  born  in  Putnam  County,  Geor- 
gia, on  the  28th  day  of  February,  1822,  and  was  of  Scotch- 
Irish  parentage.  He  was  educated  chiefly  at  LaGrange, 
Georgia,  and  at  Centre  College,  in  Kentucky,  Having  care- 
fully and  assiduously  prepared  himself  for  the  bar,  he  began 
the  practice  of  law  in  his  native  State  in  1844,  and  in  1846 
was  a  member  of  the  Georgia  Legislature.  He  afterwards 
spent  some  time  in  California,  and,  having  returned  to 
Georgia,  he  emigrated  to  Texas  in  1849  and  settled  at 
Henderson,  where  he  entered  upon  a  vigorous  and  success- 
ful practice,  and  obtained  an  enviable  distinction  at  the  bar. 

As  a  lawyer  he  was  habitually  calm,  patient  and  practical, 
and  he  made  the  dictates  of  dnty  the  rule  of  his  conduct. 
He  was  unswerving  in  his  integrity  and  devotion  to  princi- 
ple, conscientiously  faithful  to  the  interests  of  his  clients, 
and  engaged  all  the  powers  of  his  mind  and  all  the  energies 
of  his  nature  in  the  elimination  of  truth  and  the  vindication 
of  justice. 

Chivalrous  and  magnanimous  in  his  disposition,  he  ab- 
horred the  methods  of  artifice,  and  spurned  a  cause  which 
he  believed  unjust.  These  well  known  features  of  his 
character  engaged  universal  confidence  in  him  as  a  lawyer 
and  the  highest  respect  for  him  as  a  man.  He  served  in 
the  Texas  Legislature  in  1855,  and  was  a  prominent  mem- 
ber of  that  body.     In  1861  he  enlisted  as  a  private  in  one 


M.   D.  ECTOR.  167 

of  the  first  companies  raised  in  Texas  for  the  Confederate 
service,  and  was  soon  afterwards  appointed  adjutant  to 
General  Hogg.  He  was  made  a  colonel  for  gallantrj^  in 
the  field,  and  two  weeks  later  was  commissioned  brio:adier- 
general  for  the  same  reason.  .  He  served  with  distinction  at 
Chickamauga  and  Murfreesboro'  and  other  battles  of  the 
Georgia  campaign,  and  received  a  wound  near  Atlanta  on 
the  28th  of  July,  1864,  which  caused  the  amputation  of  his 
left  leg.  Having  recovered  sufficiently  from  the  shock,  he 
again  reported  for  duty,  and  was  assigned  to  the  com- 
mand of  troops  at  Mobile  about  the  time  that  the  news 
of  the  surrender  of  General  Lee  reached  the  Southern 
Department.  With  a  sad  but  dauntless  heart  he  returned 
to  his  home  in  Texas  and  resumed  his  profession  ;  but  his 
efficient  services  were  soon  called  to  another  sphere  of  pub- 
lic duty,  and  in  1866  he  was  elected  judge  of  the  Sixth 
Judicial  District.  He  held  this  office  one  year,  and  was 
then  deposed  by  the  Federal  general,  Reynolds,  as  being 
one  of  the  Southern  obstructionists.  In  1867  he  removed 
to  Marshall,  and  resumed  the  practice  of  law  in  copart- 
nership with  Col.  N.  H.  AVilson,  and  the  firm  enjoyed  a 
distinguished  reputation.  In  1874  Judge  Ector  was  ap- 
pointed by  Governor  Coke  judge  of  his  old  district,  which 
had  noAV  become  the  Seventh  District,  in  consequence  of 
the  reorganization  of  the  judicial  districts  of  the  State. 

When  the  Court  of  Appeals  was  erected  by  the  Consti- 
tution of  1875,  he  was  elected  one  of  the  judges  of  that 
tribunal,  and  upon  its  organization  in  1876  was  chosen  by 
his  colleagues  its  presiding  judge,  and  held  that  position  at 
the  time  of  his  death,  which  occurred  at  Tvler  durins;  the 
session  of  the  court,  on  the  29th  of  October,  1879. 

Judge  Ector  brought  to  the  bench  of  Appeals  the  varied 
experience  of  a  long  and  successful  criminal  practice,  which 
eminently  qualified  him  for  the  position.  As  chief  judge 
of  this  court  of  last  resort,  upon  which  hung  the  issues  of 
life  and  liberty  to  the  unfortunate  victims  of  misfortune, 
of  vice  or  passion,  he  admirably  blended  the  firmness  and 
candor  of  judicial  dignity  and  official  duty  with  the  dictates 
of  compassion  and  mercy.     He  never  lost  sight  or  sensitive- 


168  BENCH  AND  BAR  OF  TEXAS. 

ness  of  the  responsibility  of  his  position,  and  announced  no 
opinion  until  he  was  assured  that  it  was  fully  justified  by  the 
facts  and  demanded  by  the  law,  and  these  he  made  the  scru- 
pulous measure  of  his  judgments.  He  was  therefore  just 
and  correct  in  his  decisions,  and  his  career  upon  the  bench 
was  highly  instructive  as  well  as  exemplary.  His  desire 
was  to  elevate  the  new  court  at  once  to  the  highest  plain  of 
appellate  dignity,  wisdom  and  efficiency,  and  his  decisions 
add  much  to  the  criminal  jurisprudence  of  the  State. 

The  life  of  Judge  Ector  was  not  exempt  from  the  sor- 
rows which  beset  the  paths  of  men.  Death  often  invaded 
the  altar  of  his  affection,  and  tore  away  the  companion  of 
his  bosom.  He  was  married  three  times.  He  was  first 
married  in  1842  to  Miss  Louisa  Phillips,  of  Georgia,  who 
died  in  1848,  and  in  1851  he  was  again  married,  to  Miss 
Letitia  M.  Graham.  She  died  in  1859,  and  in  1864  he  was 
married  the  third  time,  to  Miss  Sallie  P.  Chew,  of  Missis- 
sippi, a  lady  endowed  with  many  charming  virtues,  and  who 
cherishes  his  memory  with  the  devotion  which  characterizes 
the  noblest  of  women. 

In  social  life  Judge  Ector  was  a  model  of  courtesy,  gen- 
tleness and  amiability.  He  was  constant  in  his  friendship 
and  delighted  in  acts  of  civility  and  kindness.  One  of  his 
associates  upon  the  bench,  Judge  John  P.  AVhite,  says  of 
him:  "  In  his  character  were  mixed  and  blended  all  those 
genial  traits  and  pure  elements  which  go  to  make  up  that 
highest  perfection  of  humanit}^  God's  noblest  work — an 
honest  man." 

He  was  held  equally  as  high  in  the  esteem  of  the  judges 
of  the  other  high  courts  and  in  the  affections  of  the  people. 
His  remains  were  borne  to  their  burial  at  Marshall  by  the 
judges  of  the  Court  of  Appeals,  the  justices  of  the  Supreme 
Court,  the  Commissioners  of  Appeals,  and  the  members 
and  attendants  of  the  bar  of  Tyler;  and  were  thus  laid 
away  with  all  the  honors  which  his  associates  and  profes- 
sional brethren  could  bestow  upon  them.  Ibi  qiciescant  in 
pace. 


CM.  WINKLER.  169 


C.    M.    WINKLER. 


Clinton  McKamy  Winkler,  a  judge  of  the  Texas  Court  of 
Appeals,  was  born  in  Burke  County,  North  Carolina,  on 
the  19th  day  of  October,  1821,  but  was  reared  in  part  in 
the  State  of  Indiana,  whither  his  father,  who  was  a  planter, 
removed  his  family  in  1835.  Young  Winkler,  having  re- 
ceived such  education  in  the  common  schools  of  the  country 
as  the  duties  of  the  farm  would  permit,  and  from  his 
mother,  who  was  an  educated  lady,  emigrated  in  1840  to 
the  Kepublic  of  Texas,  and  settled  at  Franklin,  at  that 
time  the  county  seat  of  Robertson  County,  where  he  en- 
gaged employment  in  the  office  of  the  county  clerk,  and 
devoted  his  leisure  hours  to  the  study  of  law.  In  1843  he 
was  appointed  deputy  clerk  of  the  district  court,  and  con- 
tinued at  the  same  time  his  preparation  for  the  bar,  to 
which  he  was  soon  afterwards  admitted.  In  1844  he  was 
elected  to  the  same  office,  from  which  he  retired  in  1846, 
and  entered  vigorously  upon  the  practice  of  his  profession. 
In  1848  he  removed  to  Corsicana,  where  he  permanently 
located,  and  soon  acquired  distinction  in  his  profession  and 
a  high  place  in  the  esteem  and  confidence  of  his  fellow- 
citizens.  He  was,  during  the  same  year,  elected  a  member 
of  the  Second  Legislature,  convened  after  the  annexation  of 
the  Republic  to  the  Union. 

With  the  exception  of  one  term  in  the  Legislature,  Mr. 
Winkler  pursued  his  profession,;without  intermission  until 
1861,  when  he  promptly  responded  to  the  gage  of  battle 
offered  to  his  section,  and  took  up  arms  in  behalf  of  the 
South,  to  the  cause  of  which  he  was  ardently  devoted.  He 
was  not  altogether  a  stranger  to  the  dangers  and  hardships 
of  war.  Having  settled  on  the  frontier  of  Texas  at  a  time 
Avhen  it  needed  protection  from  the  invasion  of  the  ruthless 


170  BENCH  AND  BAR  OF  TEXAS. 

savage,  he  was  early  inured  to  the  life  of  a  ranger,  and  had 
learned  something  of  the  art  of  warfare  in  defending  the 
firesides  and  cornfields  of  the  border  settlers,  among  whom 
he  dwelt. 

Upon  the  election  of  Mr.  Lincoln  to  the  Presidency,  by 
a  faction  which  proclaimed  an  ''irrepressible  conflict" 
with  the  institutions  of  the  South  and  the  Constitution  of 
the  Union,  he  saw  no  hopes  for  his  country  but  in  seces- 
sion, and  then  in  war,  bitter,  fierce  and  successful  ;  and 
early  in  1861  he  was  elected  captain  of  an  infantry  com- 
pany, which  formed  a  part  of  Hood's  famous  regiment, 
the  Fourth  Texas,  to  the  command  of  which  he  attained  in 
the  latter  part  of  the  struggle.  He  was  a  brave  soldier 
and  an  excellent  officer.  He  was  greatly  admired  and  be- 
loved by  his  men,  and  they  would  have  followed  him  into 
the  mouths  of  the  guns  of  Balaklava.  His  services  were 
conspicuous  in  all  the  great  battles  of  Virginia,  and  ended 
with  the  surrender  of  General  Lee  at  Appomattox.  He  was 
severely  wounded  at  the  battle  of  Gettysburg,  where  his 
regiment  was  engaged  in  the  death-struggle  for  the  posses- 
sion of  Round  Top,  and  many  instances  of  his  gallantry  are 
related. 

At  the  expiration  of  the  war,  Colonel  Winkler  returned 
to  Corsicana  and  resumed  the  practice  of  his  profession.  In 
1866  he  was  prematurely  declared  to  be  elected  judge  of  the 
Thirteenth  Judicial  District,  and  being  properly  qualified, 
entered  upon  the  discharge  of  the  duties  of  that  office ;  but 
having  subsequently  ascertained  that  his  competitor  was 
really  elected,  he  immediately  surrendered  the  office  and 
returned  to  the  bar,  and  devoted  his  energies  exclusively  to 
his  practice  until  he  was  elected  in  1873  a  member  of  the 
Thirteenth  Legislature,  in  which  he  w^as  conspicuous  for  the 
fidelity  with  which  he  represented  the  interests  of  his  con- 
stituents and  for  the  zeal  with  which  he  endeavored  to 
promote  the  general  welfare  of  the  State, 

In  1876  he  was  elected  by  the  people  one  of  the  judges 
of  the  Court  of  Appeals,  and  held  this  office  at  the  time  of 
his  death,  which  occurred  after  a  brief  illness  while  engaged 
in  his  judicial  labors,  at  Austin,  on  the  13th  of  May,  1882. 


CM.   WINKLER.  171 

While  Judge  Winkler  was  by  no  means  a  man  of  brilliant 
genius,  yet,  if  the  soul  and  feeling  which  eloquently  spoke 
in  all  his  acts  ;  if  an  intellectual  capacity  for  the  most  use- 
ful and  honorable  attainment  in  every  sphere  of  life,  are 
elements  of  genius,  he  participated  largely  in  that  subtle 
quality.  While  he  may  not  have  had  that  corruscating  brill  - 
iancy  of  imagination  which  Shakespeare  characterizes  as  a 
"  fine  frenzy,"  he  possessed  a  clear  and  accurate  perception, 
a  sound  and  penetrating  judgment,  and  an  indefatigable 
power  of  application.  Hence,  his  knowledge  of  law  was 
thorough  and  always  at  his  command. 

As  a  lawyer,  he  was  alert,  patient  and  painstakin"-,  and 
was  sedulous  in  the  preparation  of  his  cases.  These  qual- 
ities bore  him  steadily  u[)ward  in  his  profession,  and,  com- 
bined with  a  firm  and  unbending  integrity,  a  vigorous  com- 
mon sense,  and  a  sagacity  which  embraced  alike  the  grandest 
outlines  and  the  minutest  details,  eminently  qualified 
him  for  the  position  he  occupied  upon  the  bench. 

As  a  judge  of  the  Court  of  Appeals,  he  was  conscientious 
and  upright,  and  bent  his  untiring  energies  to  the  adjust- 
ment of  every  case,  by  the  strict  rule  of  law,  and  the  even 
scale  of  justice.  He  was  thoroughly  familiar  with  the 
Criminal  Code  of  Texas,  and. his  long  experience  at  the  bar 
had  rendered  him  expert  in  the  methods  of  criminal  pro- 
cedure. He  was  master  of  the  science  of  criminal  plead- 
ing, skillful  in  determining  the  character  and  force  of 
technicalities,  and  his  decisions  are  characterized  by  an 
unvarnished  chain  of  logic,  a  just  interpretation  of  fact,  a 
firm  application  of  law,  and  a  thorough  vindication  of 
justice. 

As  a  man,  the  character  of  Judge  Winkler  was  symmetri- 
cal and  elevated.  His  ruling  attributes  were  candor,  truth 
and  charity,  and  while  he  was  modest  in  his  personal  exactions 
he  was  exceedingly  tender  and  considerate  in  regard  to  the 
feelings  and  rights  of  others.  He  was  faithful  to  his 
friends,  and  his  domestic  virtues  were  exalted  by  the  most 
devoted  sentiments  of  love  and  affection.  He  was  first 
married  in  1848  to  Miss  Louisa  Smith,  of  Navarro  County, 
an  excellent  lady,  who  died  in  18G1.     In  January,  18G4,  he 


172  BENCH  AND  BAR  OF  TEXAS. 

was  married  at  Richmond,  Va.,  to  Miss  Angie  V.  Smith,  a 
hidy  of  rave  accomplishments  who  still  survives  him,  and  who 
by  her  culture  and  literary  attainments  has  woven  from  the 
sable  weeds  of  widowhood  the  bright  robes  of  prosperity 
and  distinction.  She  is  the  founder  and  the  editress  of  that 
sparkling  publication,  the  Oorsicana  Prairie  Flower. 

Judge  Winkler  was  held  in  the  highest  esteem  by  his 
brethren  of  the  bench,  and  the  members  of  the  bar.  His 
uniform  courtesy  and  kindness  endeared  him  to  all  who  as- 
sociated with  him  or  practiced  in  his  court,  and  his  remains 
were  attended  to  their  burial  at  Corsicana  by  the  judges  of 
the  high  courts  and  a  concourse  of  admiring  friends.  He 
was  a  sincere  believer  in  the  promises  of  Scripture,  and 
died  in  the  firm  faith  of  Christianity.  His  name  is  lumin- 
ously inscribed  in  the  military  and  judicial  annals  of  Texas. 
Ibi  emicat  in  o&ternum. 


BENJAiMIN    C.  FRANKLIN.  173 


BENJAMIN  C.  FRANRLIN. 


The  subject  of  this  memoir  was  born  in  the  State  of 
Georgia,  on  the  25tli  of  April,  1805,  and  was  educated  at 
Franklin  College,  at  Athens.  Having  graduated  from  this 
institution  he  studied  law,  Avas  admitted  to  the  bar  and 
began  the  practice  of  his  profession  at  Macon,  Georgia,  in 
copartnership  with  ex-Governor  Charles  J.  McDonald,  of 
that  State. 

In  1835  his  sympathies  were  enlisted  in  behalf  of  the 
Texans  in  their  struggle  for  independence,  and  he 
determined  to  identify  his  prospects  with  their  efforts.  In 
April  of  that  year  he  landed  at  Valasco,  at  the  mouth  of 
the  Brazos  River,  and  soon  afterward  joined  an  expedition 
against  the  Indians,  who,  instigated  by  the  Mexicans,  were 
devastating  the  border  settlements.  He  was  at  the  first 
revolutionary  consultation  at  Columbia,  and  when  the 
Texan  army  was  organized  near  Gonzales  for  the  purpose 
of  resisting  the  Mexican  invasion  under  General  Santa 
Anna,  he  took  an  active  and  energetic  part  in  raising  a 
company,  of  which  Robert  J.  Colder  was  elected  captain, 
and  which  formed  a  part  of  Colonel  Burleson's  regiment. 
Early  in  April,  1836,  he  was  commissioned  a  captain  by 
President  Burnett  and  detailed  to  organize  a  company  of 
scouts ;  but  was  prevented  from  complying  with  his 
instructions  by  the  advance  of  the  Mexicans,  which  precipi- 
tated the  battle  of  San  Jacinto,  in  which  he  fought  in  the 
ranks  under  his  former  captain,  using  his  Mississippi  rifle 
with,  no  doubt,  the  same  deliberation  and  earnestness  which 
characterized  his  actions  Ihrouo-h  life.    ■ 

Soon  after  the  battle  of  San  Jacinto  he  was  appointed 
judge  of  the  District  of  Brazos,  afterward  the  Second  Dis- 
trict of  the  Republic,  and  was  thus  one  of  the  first  judicial 
functionaries  of  the  new  government.  He  served  upon  the 
bench  for  the  space  of  three  years,  during  which  he  paid  a 


174  BENCH  AND  BAR  OF  TEXAS. 

short  visit  to  his  old  home  in  Georgia,  and  was  married 
there  on  the  31st  of  October  to  Miss  Eliza  C.  Brantley,  a 
daughter  of  Kev.  Wm.  S.  Brantley,  of  South  Carolina,  who 
was  a  noble  and  accomplished  lady,  who  accompanied  him 
in  his  return  to  Texas,  and  cheerfully  and  devotedly  shared 
with  him  the  dangers-,  hardships  and  deprivations  neces- 
sarily incident  to  life  in  the  new  and  struggling  Republic 
until  her  death,   which  occurred  in  1843. 

In  1840  he  retired  from  the  bench  and  established  his 
residence  in  Galveston,  where  he  actively  engaged  in  an 
extensive  practice  which  embraced  the  whole  of  South- 
eastern Texas,  directing  his  attention  largely  to  the  location 
of  lands  and  to  the  important  litigation  which  necessarily 
grew  out  of  the  intricate  land  system  of  the  country.  In 
conjunction  with  J.  C.  Watrous  he  represented  Edward 
Hall  in  his  contest  with  Dr.  Levi  Jones  in  regard  to  the 
location  of  land  scrip  upon  Galveston  Island.  This  con- 
test resulted  in  a  compromise  by  which  that  part  of  the 
island  west  of  the  city  league  was  divided  into  fourteen 
sections,  each  containing  about  twelve  hundred  and  eighty 
acres  —  the  odd  numbered  sections,  from  one  to  eleven, 
being  allotted  to  Hall,  and  the  even  numbered  sections, 
from  two  to  fourteen,  to  Jones. 

The  government  of  the  Republic  had,  at  an  early  day, 
caused  the  entire  island  to  be  laid  out  in  lots  of  ten  acres, 
and  provided  for  the  sale  of  them  for  the  purpose  of  raising 
money  to  relieve  the  necessitous  condition  of  the  public 
finances  ;  but,  after  having  sold  a  number  of  these  lots  at 
what  was  considered  an  inadequate  price,  it  abandoned  the 
policy  of  disposing  of  them  in  this  manner,  and  with  thc' 
exception  of  the  lots  thus  sold,  the  titles  to  the  entire  island, 
west  of  the  city  league,  have  their  origin  in  the  Hall-Jones 
compromise. 

Judge  Franklin  was  also  one  of  the  counsel  employed 
by  the  city  of  Galveston  in  its  litigation  with  the  wharf 
company  and  others,  which  involved  the  title  to  the  flats, 
or  shallow  water  extending  along  the  bay  or  harbor  fronts 
of  the  city,  and  which  also  resulted  in  a  compromise,  by 
which  a  third  interest  in  them  was  vested  in  the  city,  with 
a  provision  ag.iinst  alienation  withrut  the  consent  of  four- 


BENJAMIN    C.  FRANKLIN.  175 

fifths  of  its  qualified  voters.  He  represented  Galveston 
County  four  terms  in  the  Legislature,  and  was  chairman 
of  the  judiciary  committee  during  the  whole  of  his  legisla- 
tive career.  This  position  enabled  him  to  exercise  great 
influence  in  originating  and  shaping  the  laws  of  the 
State;  and  many  of  those  which  were  enacted  during  that 
period  bear  the  impression  of  his  judgment  and  genius. 
The  scope  and  intensity  of  his  patriotism,  his  penetrating 
perception,  sound  judgment,  and  untiring  industry  ren- 
dered him  an  efficient  legislator,  and  his  energies  were 
devoted  to  the  promotion  of  every  interest  of  the  State. 
Immersed  in  the  requirements  of  his  long  public  services 
and  the  demands  of  an  extensive  practice,  he  yet  found 
time  for  oreneral  culture,  and  was  a  man  of  varied  accom- 
plishments  and  a  fine  schohir.  His  aesthetic  taste  led  him 
to  admire  the  beauties  of  literature,  and  impressed  his 
address  with  chastity  and  critical  correctness. 

Although  he  was  a  true  Southerner  he  took  no  active 
part  in  the  war  between  the  States,  being  too  old  for  mili- 
tary service,  and  a  great  sufferer  from  rheumatism  during 
the  entire  period  of  the  struggle.  He  had  retired  to  a 
small  farm  near  Livingston,  in  Polk  County,  and  while  he 
continued  to  practice  law  when  urged  by  his  old  clients,  he 
made  no  effort  to  re-establish  his  extensive  practice.  His 
sufferings  from  rheumatism,  aggravated  by  a  malarial 
attack,  his  losses  by  the  war,  and  above  all  his  despond- 
ency in  regard  to  the  political  and  social  future  of  his 
country  left  but  little  incentive  to  begin  the  strno-oje  of 
life  anew.  He  led  a  retired  life  upon  his  farm  until  1870, 
when  he  returned  to  Galveston,  and  seeing  some  chance  to 
aid  his  countrymen  in  their  efforts  to  throw  off  the  dis- 
tasteful rule  which  had  been  fastened  upon  them  during  the 
military  occupation  of  the  State,  he  once  more  embarked 
in  active  life,  and  took  part  in  the  first  decisive  movement 
on  the  part  of  the  people  to  regain  the  control  of  the 
State.  This  was  the  organization  of  the  tax-payers  of 
Galveston  to  resist  by  all  lawful  means  the  levies  made  to 
sustain  a  standing  army  of  militia,  and  a  cumbrous  and 
irresponsible  school  system  designed  by  means  of  a  host 
of  officials  to  perpetuate  the  rule  of  the  Republican  party 


176  BENCH  AND  BAR  OF  TEXAS. 

in  the  State,  which  was  utterly  repugnant  to  a  hirge 
majority  of  the  people.  This  movement  was  followed 
throuo-hout  Texas,  and  he  lived  to  see  the  clouds  that 
lowered  in  the  political  heavens  of  his  State  pass  away 
behind  the  horizon,  and  its  people  once  more  on  the  high- 
way to  that  prosperity  which  destiny  and  nature  had  shaped 
for  them.  He  died  unexpectedly  on  the  25th  of  December, 
1873,  soon  after  he  had  been  elected  to  represent  the  Gal- 
veston District  in  the  State  Senate,  and  in  the  midst  of  his 
plans  to  devote  the  riper  years  of  his  life  to  the  service 
of  his  country. 

Judge  Franklin  was  a  lawj'-er  of  fine  ability,  and  thoroughly 
acquainted  with  the  history  and  character  of  Texas  juris- 
prudence. He  had  watched  and  weighed  every  feature  that 
entered  into  its  composition,  and  there  was  no  one  more 
familiar  with  the  poised  effects  and  combined  import  of  its 
blended  elements.  He  was  never  at  a  loss  for  the  proper 
methods  for  reaching  the  true  issue  in  a  controversy,  and 
rarely  erred  in  the  selection  of  his  legal  standpoints.  He 
was,  therefore,  a  safe  counselor,  and  possessed  the  highest 
respect  of  the  bench  and  bar,  and  the  implicit-  confidence 
of  the  people. 

Although  he  was  stern  in  the  maintenance  of  that  which 
he  believed  to  be  right,  and  in  the  pursuit  of  the  dictates  of 
duty,  his  moderation  was  no  less  marked  than  his  integrity. 
While  he  was  a  man  of  earnest  and  intense  convictions,  his 
actions  and  expressions  were  always  tempered  with  mildness 
and  discretion.  Hence  he  was  respected  and  esteemed  by 
men  of  all  classes  and  politics. 

The  Constitution  of  1869  provided  that,  within  five  years 
from  the  time  of  its  adoption,  the  laws,  both  civil  and 
criminal,  should  be  revised  and  published  in  such  manner  as 
the  Legislature  might  direct.  A  bill  to  meet  this  require- 
ment of  the  organic  law  was  introduced  in  the  Legislature 
in  1872,  but  for  some  reason  or  other  failed  of  enactment. 
To  properl}'^  revise  and  digest  the  laws  of  a  State  is  a  task 
requiring  the  highest  legal  and  legislative  skill,  and  in  the 
bill  which  was  introduced  for  that  purpose,  the  name  of 
Judge  Franklin  stood,  by  common  acceptance,  at  the  head 
of  the  list  of  the  proposed  revisors,  thus  testifying  to  the 


BENJAMIN    C.  FRANKLIN.  177 

general  appreciation  of  his  ability  and  eminent  qualification 
for  the   performance  of  the  responsible  and  arduous  duty. 

Nor  was  this  estimate  of  his  character  confined  to  his 
friends  or  to  the  Democratic  party.  The  Republican  Gov- 
ernor, E.  J.  Davis,  undertook  by  virtue  of  his  own  authority 
to  repair  the  omission  of  the  Legislature,  and  proceeded  to 
appoint  a  commission  to  revise  the  laws  of  the  State.  This 
commission  he  tendered  to  Judge  Franklin,  as  one  whose 
appointment  he  knew  would  be  approved  by  the  impartial 
and  enlightened  judgment  of  all  good  men  of  both  parties 
in  the  State,  and  in  the  commission  he  declared,  that 
*'  reposing  special  trust  and  full  confidence  in  the  loyalty, 
integrity  and  ability  of  Benjamin  C.  FrankHn,"  he  did  "  by 
virtue  of  the  authority  vested  in  him  by  the  Constitution 
and  laws  of  the  State,  constitute  and  appoint  the  said 
Benjamin  C.  Franklin,  commissioner,  to  revise,  digest  and 
arrange  the  laws  of  the  State,  as  required  by  section  35,  of 
article  411,  of  the  Constitution." 

Judge  Franklin  did  not  believe  that  the  Governor  had  the 
power  to  make  the  appointment,  and  promptly  declined  it ; 
he  was  not  capable  of  thus  violating  the  law,  or  of  acting 
under  such  doubtful  authority.  But  the  tribute  to  his 
merits,  which  the  selection  imports,  is  no  less  conclusive  of 
the  just  estimation  in  which  he  was  held  by  all  parties 

Judge  Franklin  was  a  man  of  refined  social  qualities.  He 
was  tender  in  his  sympathies,  warm  in  his  attachments,  and 
possessed  a  charity  responsive  to  every  appeal  of  virtue. 
He  was  a  man  of  most  equable  temperament,  quiet  and 
methodical  in  all  the  affairs  of  life,  and  pursued  the  even  tenor 
of  a  philosopher.  In  his  views  and  sentiments  he  exemplified 
the  best  type  of  early  Texas  character.  He  cherished  in 
the  highest  degree  the  honor  of  the  State,  and  was  devoted 
to  its  institutions  and  its  people. 

He  was  married  on  the  3d  of  November,  1847,  to  Miss 
Estelle  B.  Maxwell,  of  Kaskaskia,  Illinois,  who  was  at  that 
time  visiting  the  family  of  her  cousin,  Michael  B.  Menard, 
Esq.,  of  Galveston.  This  excellent  lady  still  survives  him, 
and  is  now  residing  in  her  native  town,  Kaskaskia. 
12 


178  BENCH  AND  BAR  OF  TEXAS. 


RICHARDSON  A.  SCURRY. 


This  eminent  member  of  the  early  bar  and  bench  of 
Texas  was  a  native  of  Gallatin,  Sumner  County,  Tennessee. 
His  father,  Thomas  Scurry,  was  of  Scotch  descent  and  a 
lawyer  of  Gallatin,  and  is  said  to  have  been  a  man  of  brill- 
iant intellect,  of  remarkable  memory,  fine  judgment  and 
sparkling  wit  and  humor,  which,  descending  to  his  son, 
William  E.  Scurry,  a  brother  of  Richard,  made  him  the 
brilliant  and  engaging  "stump  speaker"  and  humorous 
character,  well  remembered  by  the  older  citizens  of  Texas. 

The  mother  of  Richardson  A.  Scurry  descended  from  a 
French  Huguenot  family  which  fled  from  France  in  conse- 
quence of  the  revocation  of  the  Edict  of  Nantes,  first  to 
Eno-land  and  thence  to  America,  and  settled  in  Viro-inia. 
Her  parents  soon  after  their  marriage  immigrated  to  the 
unexplored  regions  beyond  the  Alleghanies,  and  she  was 
born  in  a  rude  fort  erected  for  the  protection  of  the  settlers 
against  the  Indians.  She  was  a  woman  of  noble  character 
and  intelligence,  one  fit  to  be  "  the  mother  of  sons,"  and 
was  married  in  1808. 

Richardson  was  the  eldest  of  five  children.  He  inherited 
the  fine  memory  of  his  father  and  the  reflective,  philosoph- 
ical mind  of  his  mother.  His  educational  advantages  were 
good,  and  while  at  school  he  developed  one  of  those  rare 
order  of  minds  in  which  the  truths  of  mathematics  seem 
intuitive.  He  is  said  to  have  mastered  the  first  six  books 
of  Euclid  in  three  weeks.  Having  completed  a  thorough 
collegiate  course,  he  studied  law  in  the  oflSce  of  his 
kinsman  —  the  brilliant  and  eccentric  Judge  Guild.  He 
possessed  a  great  love  for  books  and  a  thirst  for  knowledge, 
which  caused  hiDa  to  extend  at  the  same  time  his  researches 


RICHARDSON    A.  SCURRY.  179 

to  the  various  fields  of  literature,  and  he  acquired  a  useful 
store  of  ojeneral  knowledge. 

Soon  after  he  had  been  admitted  to  the  bar  and  had 
begun  the  practice  of  his  profession  at  Gallatin,  the  struggle 
of  Texas  for  her  independence  attracted  the  attention  of 
the  country,  and  kindled  a  spirit  of  sympathy  throughout 
the  Southern  States.  Fired  by  this  sentiment  and  a  love 
of  romance  and  adventure,  young  Scurry  determined  to 
cast  his  lot  with  the  heroic  people  of  the  young  Republic, 
and  joined  a  gallant  band  of  young  men  organized  for  the 
Texas  service.  He  reached  the  Texan  army  two  days 
before  the  battle  of  San  Jacinto,  and  was  made  a  lieuten- 
ant on  the  field  for  gallantry  and  good  conduct. 

When  the  government  of  the  young  Republic  was  fairly 
organized  he  settled  in  San  Augustine  and  formed  a  law 
copartnership  with  General  Thomas  H.  Rusk  and  Colonel 
J.  Pinckney  Henderson.  He  soon  afterward  joined  a 
company  under  General  Rusk,  organized  for  the  protection 
of  the  colony  against  the  depredations  of  the  Cherokee 
Indians.  This  gallant  little  company,  after  many  adven- 
tures and  narrow  escapes,  succeeded  in  driving  the  Indians 
out  of  Eastern  Texas  and  thus  terminating  "  the  Cherokee 
war." 

He  was  the  first  district  judge  elected  in  the  eastern  por- 
tion of  the  Republic,  and  this  position  made  him  ex-officio 
one  of  the  judges  of  the  Supreme  Court.  At  that  time  it 
was  necessary  that  a  Texas  judge  should  be  not  only  a 
clear-headed  lawyer  and  a  man  of  sound  judgment,  but 
that  he  should  have  the  courage  to  form  and  deliver  his 
opinions  regardless  of  danger  or  threats,  and  sometimes  to 
pronounce  judgment  with  a  brace  of  pistols  lying  conspicu- 
ously upon  his  desk.  But  Judge  Scurry  was  equal  in  all 
these  respects  to  the  demands  of  his  position,  and  his  judg- 
ments were  enforced  and  respected. 

In  1841  he  was  elected  to  a  seat  in  the  Congress  of  the 
Republic,  then  held  in  the  town  of  Washington,  and  in 
1844  he  was  re-elected  and  was  made  Speaker  of  the  House 
of  Representatives. 


180  BENCH  AND  BAR  OF  TEXAS. 

During  this  year  lie  met  in  Washington  Miss  Evantha 
Foster,  who  was  visiting  her  cousin,  Mrs.  Wm.  A.  Wharton, 
whose  husband  and  his  brother,  Colonel  John  A.  Wharton, 
were  also  members  of  Congress  — the  former  being  a  mem- 
ber  of  the  House  of  Representatives,  and  the  latter  of 
the  Senate.  Miss  Foster  was  a  "beauty"  among  the 
belles  of  the  gay  little  capital,  who  danced  their  balls  on 
puncheon  floors  with  the  gallant  young  Congressmen  and 
ofiicials  arrayed  in  much-worn  garments  and  decorated  with 
pistols  and  top-boots.  Judge  Scurry  and  Miss  Foster  were 
married  in  1815. 

Soon  after  the  annexation  of  Texas  to  the  United  States 
he  removed  to  Clarksville,  in  Red  River  County,  and  was 
elected  district  judge.  In  1853  he  was  elected  with  Volne}'' 
E.  Howard,  of  San  Antonio,  as  his  colleague,  to  represent 
Texas  in  the  Congress  of  the  United  States,  and  it  was  in 
vacation  during  his  last  term  in  Congress  that  an  accident 
occurred  to  him  which  finally  terminated  his  life.  In  the 
hurried  preparation  for  a  hunt  in  the  early  morning,  he  let 
his  gun  fall,  which,  emptying  itself,  tore  away  the  lower  part 
of  his  foot.  A  country  doctor,  wholly  without  knowledge  of 
surgery,  amputated  it,  leaving  a  wound  that  never  healed, 
and  from  this  time  to  his  death  he  was  a  confirmed  invalid. 
Having  to  abandon  the  practice  of  his  profession,  he 
devoted  himself  to  his  books.  The  banking  question, 
which  was  at  that  time  in  a  state  of  much  confusion  and 
perplexity,  interested  him  greatly,  and  he  wrote  several 
able  articles  on  the  subject  which  were  copied  throughout 
the  country. 

Judge  Scurry  was  opposed  to  secession,  but  believed 
that  a  war  between  the  States  was  inevitable.  He  was  a 
devoted  Texan  and  an  ardent  Southerner,  and  when  the 
bu^le  blast  rang  out   calling  the   South   to  arms  he   felt 

c  o  o 

more  keenly  than  ever  the  helplessness  which  forbade  his 
response  to  the  call.  A  colonel's  commission  was  sent  him 
by  the  Confederate  government,  with  orders  to  raise  a 
regiment ;  but  in  his  state  of  health,  and  being  compelled 
to  walk  with  crutches,  this  was  impossible.  He  addressed 
a  letter  to  his  old  friend,  General  Albert  Sidney  Johnston, 


RICHARDSON    A.  SCURRY.  181 

stating  his  condition,  and  asking  him  if  there  was  anything 
a  cripple  could  do  in  the  defense  of  his  country.  General 
Johnston  requested  him  to  repair  to  his  headquarters  at 
once,  and  offered  him  the  position  of  Adjutant-General  on 
his  staff.  A  physician  and  friend  persuaded  him  to  have 
his  leg  amputated,  assuring  him  that  he  would  then  soon 
recover  his  health;  and  in  his  impatience  to  join  General 
Johnston,  he  would  not  wait  for  chloroform  to  be  procured, 
which  was  then  scarce  and  difficult  to  be  obtained,  but 
caused  the  amputation  to  be  made  at  once,  which  he  bore 
with  the  fortitude  of  a  martyr.  His  vital  powers  gave 
way  under  the  tremendous  strain  of  the  operation,  and  he 
died  on  the  3d  of  April,  1862. 

His  death  was  greatly  lamented  throughout  the  State,  and 
the  most  impressive  tokens  of  respect  were  payed  to  his 
memory  which  those  exciting  times  permitted.  General 
Houston,  on  bearing  of  his  death,  said  :  "  There  died  one 
of  the  most  wonderful  minds  I  have  ever  known.  It  was  a 
vast  store-house  of  legal  lore."  He  was  truly  an  able 
lawyer  and  an  excellent  judge,  and  his  career  was  elevating 
to  the  bench  and  bar  of  the  Republic  and  State.  His  per- 
ceptions were  clear,  his  judgment  was  based  upon  sound  rea- 
son, and  his  memory  was  remarkable.  It  is  said  that  while 
practicing  in  copartnership  with  General  Rusk  and  Colonel 
Henderson,  whenever  a  difficult  question  arose,  requiring 
reference  to  numerous  authorities,  they  would  entrust  the 
matter  to  his  memory,  and  he  would  without  hesitation  cite 
the  authors,  volumes  and  chapters  desired. 

In  society  Judge  Scurry  was  quiet  and  sedate,  taking  but 
little  part  in  the  ordinary  surface  play  of  conversation  ; 
but  when  a  proper  subject  for  discussion  was  touched,  his 
extensive  knowledge  and  command  of  language  impressed 
his  listeners  with  the  correctness  of  his  judgment  and  the 
wisdom  of  his  views.  He  held  the  wand  of  suasion  with  a 
masterly  hand,  and  charmed  his  hearers  with  copious  and 
interestino^  illustrations   drawn   from  his  extensive  reading. 

In  the  dawn  of  her  history  Texas  had  many  bright  minds 
and  patriotic  spirits,  which  gave  strength   to  her  councils, 


182  BENCH  AND  BAR  OF  TEXAS. 

valor  to  her  arms,  wisdom  to  her  laws,  and  grace  to  her 
character;  but  there  are  but  few  to  whom  in  these  respects 
she  owes  more  than  to  the  two  Scurrys.  Their  names,  with 
those  of  the  two  Jacks,  the  two  Whartons  and  others,  will 
always  reflect  much  of  the  brightness  and  glory  of  the 
Republic  and  State  along  the  path  of  history,  throughout 
the  corridors  of  after  time. 


WILLIAM    S.  TODD.  183 


WILLIAM     S.    TODD. 


The  subject  of  this  sketch  was  born  in  Caroline  County, 
Virginia,  in  the  year  of  1808.  His  father,  George  T. 
Todd,  was  the  son  of  a  Scotch  physician,  who,  with  several 
brothers,  emio-rated  to  Virginia  soon  after  the  Revolution- 
ary  struggle,  one  of  whom  was  the  ancestor  of  Mrs.  Abra- 
ham Lincoln.  He  was  the  wealthiest  man  in  Caroline 
County,  and  lived  to  the  extreme  age  of  ninety  years. 
William  S.  Todd  was  a  young  man  of  talent  and  ambition, 
and  while  young  represented  his  county  in  the  Legislature 
of  Virginia.  He  removed  to  Texas  in  1843,  and  located  at 
Boston,  in  Bowie  County,  but  soon  afterward  removed  to 
Clarksville.  In  1850  he  was  elected  judge  of  the  Eighth 
District,  and  organized  the  first  courts  held  in  the  counties 
of  Cooke,  Hunt,  Collin  and  Grayson.  He  held  the  position 
of  district  judge  until  1862,  when  he  retired  from  the 
bench  and  settled  at  Jefferson,  where  he  died  in  1864. 

Judge  Todd  was  a  member  of  the  convention  of  1861, 
and  signed  the  ordinance  of  secession.  His  whole  heart  was 
enlisted  in  the  Southern  cause,  and  it  is  well,  perhaps,  that 
he  did  not  live  to  witness  the  destruction  of  his  hopes  and 
the  overthrow  of  the  principles  which  he  had  so  long  cher- 
ished and  so  ably  advocated. 

Before  he  left  Virginia  he  was  married  to  Miss  Eliza  A. 
Hudgins.  She  was  the  daughter  of  Thomas  D.  Hudgins,  a 
planter  of  Mathews  County,  who  died  in  Richmond  in 
1862.  She  was  a  highly  educated  and  accomplished  lady, 
and  was  loner  an  interestins;  contributor  to  the  N'orthern 
/Standard,  at  that  time  the  leading  paper  in  Northern  Texas. 
She  was  a  noted  teacher,  and  conducted  a  flourishing  school 
first  at  Boston  and  then  at  Clarksville,  to  the  time  of  her 
death. 


184  BENCH  AND  BAR  OF  TEXAS. 

Judge  Todd  was  a  thorough  lawyer  and  an  excellent  man. 
He  had  applied  himself  to  the  study  of  law  with  all  the 
vigor  and  assiduity  which  a  love  of  the  profession  inspires, 
and  his  success  was  the  sure  reward  of  ability  and  merit. 
His  career  as  a  judge  was  elevating  to  the  bench,  and 
adorned  the  judicial  ermine  of  the  State  ;  and  the  author 
regrets  that  he  has  not  been  able  to  obtain  more  information 
in  regard  to  his  personal  traits  and  the  incidents  of  his 
early  life. 


CHAPTEK    yi. 


THE  BAR  OF  THE  REPUBLIC  AND  STATE  —  EMI>fENT  LAWYERS,  DECEASED  — 
J.  PINCKNEY  HENDERSON  —  R.  M.  WILLIAMSON  —  WM.  H.  JACK — JAMES 
WEBB — ^^EBENEZER  ALLEN — JAMES  WILLIE  —  O.  C.  HARTLEY  —  THOMAS 
H.  JENNINGS  —  JOHN  A.  WHARTON  —  E.  M.  PEASE  —  JAMES  W.  DALLAM  — 
W.  S.  OLDHAM  —  H.  P.  BRKWSTER  —  THOMAS  M.  JACK. 


James  Pinckney  Henderson. 


This  distiniruished  lawyer,  soldier  and  statesman  was  born 
in  Lincoln  County,  North  Carolina,  on  the  31st  of  March, 
1809,  and  descended  from  an  ancient  and  honorable  family 
whose  name  is  prominent  in  the  early  history  of  that  State. 
His  early  educational  advantages  were  good,  and  he  was  for 
several  j^ears  a  student  at  the  University  of  the  State  at 
Chapel  Hill.  He  studied  law  and  was  admitted  to  the  bar  be- 
fore he  was  twenty-one  years  of  age.  He  was  an  ambitious 
young  man,  and  was  endowed  with  a  brilliancy  of  intellect 
which  early  gave  promise  of  a  distinguished  career.  While 
preparing  for  the  bar  he  studied  with  the  most  intense  ap- 
plication, and  often  told  his  friends  in  after  life  that  during 
that  period  he  devoted  eighteen  hours  a  day  to  his  studies. 
This  injudicious  taxation  of  his  powers  induced  a  constitu- 
tional Aveakness  from  which  he  never  recovered.  At  the 
iige  of  twenty-two,  he  was  appointed  aid-de-camp,  with 
the  rank  of  major,  to  Major-General  Dorrett,  of  the  North 
Carolina  militia,  and  was  afterwards  elected  colonel  of  a 
regiment. 

In  the  fall  of  1835,  Colonel  Henderson  removed  to  Mis- 
sissippi, and,  having  settled  at  Canton,  began  the  practice 

(1S5) 


186  BENCH  AND  BAR  OF  TEXAS. 

of  law  with  the  brightest  prospects  of  success.  But  he 
had  scarcely  tested  the  opportunities  offered  him  in  this  new 
field  before  his  attention  was  attracted  to  the  strug-g-les  of 
the  province  of  Texas  to  throw  off  the  oppressive  and  de- 
grading yoke  of  Mexican  rule.  His  sympathy  was  at  once 
enlisted  in  the  cause  of  the  patriots  who  had  hoisted  the 
banner  of  liberty  and  the  Lone  Star,  and  he  determined  to 
devote  his  energies  to  their  interest.  Judge  Foote,  who 
was  at  that  time  a  prominent  lawyer  and  politician  in 
Mississippi,  in  referring  to  a  speech  which  he  made 
to  an  assembly  of  Texas  sympathizers  at  Canton,  in  the 
spring  of  1836,  thus  describes  Colonel  Henderson  at  that 
period :  — 

"  When  I  stepped  down  from  the  rostrum  it  was  grace- 
fully ascended  by  a  young  gentleman  whom  I  had  never 
seen  before.  The  person  of  that  young  gentleman  was 
noble  and  commanding;  his  voice  presently  proved  itself  to 
be  both  strong  and  musical ;  his  eyes  and  whole  counte- 
nance Hashed  forth  the  lio-ht  of  commingled  thouo-ht  and 
passion.  That  young  orator  swept  the  audience  before 
him  like  a  whirlwind.  'Who  is  he?'  exclaimed  many 
voices,  and  the  response  was,- 'That  is  Mr.  Henderson,  a 
young  lawyer  of  uncommon  promise,  and  of  easy  fortune, 
who  has  just  emigrated  from  North  Carolina  and  settled 
among  us.'  To  the  honor  of  Madison  County,  be  it  said 
that  several  thousand  dollars  were  at  once  subscribed,  and 
various  young  men  resolved  to  go  forth  to  the  rescue  of 
their  brethren  in  Texas.  I  was  soon  introduced  to  General 
Henderson  (for  by  such  title  is  that  young  orator  now  dis- 
tinguished). I  spent  a  day  in  his  society,  and  have  never 
seen  him  since.     Next  morning  he  started  to  Texas." 

Soon  after  his  arrival  in  Texas,  Colonel  Henderson  was 
commissioned  by  President  Burnett  to  return  to  the  United 
States  and  recruit  for  the  Texan  army.  He  proceeded  to 
his  old  home  in  North  Carolina  and  raised  a  company  which 
he  transported  to  Texas  at  his  own  expense.  He  returned 
in  November,  1836,  and  was  immediately  appointed  by 
President  Houston  Attorney-General  of  the  Republic,  and 
in  December  following  he  was  made  Secretary  of  State,  to 


JAMES    PINCKNEY    HENDERSON.  187 

fill   the  vacancy   in  that   office   occasioned  by  the  death  of 
Stephen  S.  Austin. 

Early  in  the  year  of  1837,  Colonel  Henderson  was  sent 
as  Minister  Plenipotentiary  and  Envoy  Extraordinary  from 
the  Republic  of  Texas  to  the  courts  of  France  and  England. 
He  was  commissioned  to  solicit  the  recognition  of  the  inde- 
pendence of  Texas  by  these  Powers,  and  was  invested  with 
plenary  powers,  as  ambassador,  to  conclude  treaties  of 
amity  and  commerce  with  them.  His  mission  w^as  success- 
ful. Both  of  these  Powers  soon  recognized  the  independ- 
ence of  the  Republic  and  entered  into  cordial  treaty 
relations  with  the  new  nationality.  His  eminent  talents  and 
noble  bearing,  and  the  fidelity  and  ardent  zeal  with  which 
he  urged  the  claims  of  his  country  to  a  place  among  the 
nations  engaged  for  himself  a  warm  personal  consideration, 
and  it  was  not  for  Thucidides  in  his  elegant  delineations  of 
the  events  which  preceded  the  Peloponesian  war  to  describe 
a  more  patriotic  embassy  than  that  of  Colonel  Henderson 
to  the  courts  of  England  and  France.  His  appeals  for  the 
recognition  of  that  independence  which  his  country  had  so 
nobly  achieved,  fell  in  stirring  strains  upon  the  proud  ears 
of  the  great  statesmen  and  diplomatists  who  at  that  time 
adorned  the  courts  of  St.  Cloud  and  St.  James.  He  was 
greatly  indebted  to  the  kind  services  of  General  Cass,  the 
American  Minister  at  Paris,  w^hich  greatly  aided  him  in  ac- 
complishing his  mission  to  France.  He  introduced  him  as 
a  younger  brother  to  the  nations,  and  he  was  looked  upon 
in  Paris  as  a  new  apparition  of  American  glory  —  as  another 
Franklin,  fresh  from  the  cradle  of  liberty. 

In  1840,  Colonel  Henderson  returned  to  Texas,  and  was 
welcomed  by  a  universal  outburst  of  applause  and  the 
w^armest  congratulations  of  his  countrymen.  A  grand 
dinner  was  given  him  at  Galveston,  and  demonstrations  of 
public  gratitude  and  esteem  were  tendered  him  by  several 
other  towns,  Avhich  he  modestly  declined.  At  the  expira- 
tion of  General  Lamar's  Presidential  term,  he  was  strongly 
urged  to  become  a  candidate  for  the  Presidency  of  the 
Republic  ;  but  being  somewhat  under  the  constitutional  age 
required   for   that  office,    he    promptly   declined    the   can- 


188  BENCH  AND  BAR  OF  TEXAS. 

didacj,  declaring  that  he  would  not  violate  the  Constitution 
and  laws  of  his  country,  though  no  one  but  himself  should 
be  cognizant  of  the  fact.  He  would  not  thus  incur  the 
reproach  of  his  own  conscience  and  the  condemnation  of 
his  own  heart. 

History  furnishes  but  few  more  striking  exhibitions  of 
disinterested  patriotism  and  personal  rectitude.  Cincinnatus 
retiring  to  his  plow-share,  Regulus  advising  his  country- 
men as  to  their  best  interest  and  returnino;  to  Carthage  in 
compliance  with  his  oath,  Epaminondas  asking  his  judges 
but  one  favor,  that  his  patriotism  be  inscribed  upon  his 
tomb,  present  themselves  as  parallel  instances. 

Col.  Henderson  now  settled  at  San  Augustine  and  resumed 
the  practice  of  his  profession  ;  but  in  1844  he  was  sent  by 
his  government  to  Washington  as  Minister  Plenipotentiary 
to  act  in  concert  with  Mr.  Van  Zandt,  the  Texan  Charo;e 
d' Affairs  in  negotiating  a  treaty  for  the  annexation  of 
Texas  to  the  United  States.  Mr.  Calhoun,  Avho  was  then 
Secretary  of  State,  favored  their  cause,  and  they  had  but 
little  difficulty  in  accomplishing  their  object.  The  treaty 
was  at  first,  however,  rejected  by  the  United  States,  but 
through  the  exertions  of  the  Texan  Ministers  and  their 
friends  in  Congress,  it  was  subsequently  ratified. 

In  June,  1845,  he  was  elected  one  of  the  members  from 
San  Augustine  County  to  the  Convention  which  framed  the 
Constitution  of  the  new  State,  and  his  debates  in  that  body 
are  still  highly  interesting.  He  was  an  active  and  influen- 
tial member  and  his  views  were  largely  impressed  upon  the 
admirable  organic  law  which  has  conferred  honor  and 
prosperity  upon  the  State. 

In  November,  1845,  he  was  elected  Governor  of  Texas, 
for  which  his  knowledge  of  the  spirit  of  the  Constitution 
and  its  mission  rendered  him  peculiarly  suitably,  and  his 
thorough  knowledge  of  law  and  discrimination  of  character 
enabled  him  to  select  that  talent  and  judicial  capacity  for 
the  Texas  bench  which  glorified  the  beginning  of  its 
jurisprudence. 

His  message  to  the  first  Legislature  was  plain,  simple  and 
brief,  as  if  he  did  not  wish  to   burden  that   body    with    the 


JAMES    PINCKNEY    HENDERSON.  189 

consideration  of  questions  wliich  might  in  anywise  impede 
the  smooth  start  of  the  new  machinery  of  government  or 
clog  its  incipient  movements  ;  yet  he  was  urgent  for  the 
advancement  of  those  matters  which  form  the  great  and 
vital  interest  of  every  free  community.  In  reference  to 
the  promotion  of  public  justice  and  popular  education,  he 
said :  — 

"  The  prosperity,  happiness  and  permanence  of  every 
government  like  ours,  where  all  authority  is  derived  from 
and  exists  at  the  will  of  the  people,  greatly  depends  upon 
the  intelligence  and  moral  and  religious  character  of  its 
citizens.  That  prosperity,  happiness  and  permanence  can 
be  best  secured  to  ourselves  and  posterity  by  making  liberal 
provisions  for  the  education  of  the  rising  and  future  genera- 
tions. By  the  Constitution  it  is  made  the  duty  of  the 
Legislature  to  make  suitable  provision  for  the  support  of 
public  schools,  and  to  set  apart  not  less  than  one-tenth  of 
the  annual  revenue  of  the  State  as  a  perpetual  fund  for  that 
purpose,  and  as  soon  as  practicable  to  furnish  other  means 
for  the  support  of  free  schools  throughout  the  State  by 
taxation.  The  slow  progress  made  by  most  of  our  sister 
States  in  collecting  a  sufficient  fund  for  educational  pur- 
poses and  maturing  plans  for  public  schools,  should  warn 
us  of  the  necessity  of  commencing  that  important  work 
with  our  earliest  existence  as  a  State.  The  people  of  no 
State  have  ever  yet  had  occasion  to  regret  the  munificence 
of  their  Legislature  upon  this  subject,  when  proper  care 
has  been  taken  to  establish  a  good  sj^stem  of  public  in- 
struction, and  to  insure  a  prudent  management  of  the  means 
appropriated. 

"  Some  confusion  will  necessarily  be  produced  in  our  laws 
by  our  change  of  government  from  an  independent  repub- 
lic to  a  State  of  the  Union.  Obscurities  have  already  been 
introduced  into  many  of  our  laws  by  the  frequent  changes 
and  amendments  which  have  been  made  or  attempted  by 
the  Legislature.  Our  Constitution  requires  you  to  provide 
for  a  revision  of  our  civil  and  criminal  laws.  The  interest 
of  the  State,  it  seems  to  me,  requires  that  it  should  be  done 
as  soon  as  practicable,  and  I  therefore  recommend  it  to 


190  BENCH  AND  BAR  OF  TEXAS. 

your  especial  consideration.  A  faithful  and  rigid  adminis- 
tration of  the  criminal  laws  of  every  State  is  necessary  ; 
the  public  peace,  safety  and  morals  demand  it. 

"  Economy  in  the  administration  of  the  government  is 
always  becoming  to  the  agents  of  the  people  —  with  us  it 
is  absolutely  necessary.  As  far  as  my  actions  are  con- 
cerned, as  the  chief  executive  officer  of  the  State,  I  can 
promise  a  strict  observance  of  that  duty,  doubting  not  that  1 
shall  find  in  you,  as  the  representatives  of  the  people,  a 
corresponding  disposition. 

"  I  commend  you,  gentlemen,  to  God's  holy  care,  with  a 
full  reliance  upon  His  bountiful  providence  for  the  pros- 
perity of  our  infant  State.  As  He  has  conducted  us 
through  all  our  dangers  and  troubles  to  the  desired  haven, 
so  will  He  enable  us  to  ride  there  in  safety.  He  will  keep 
us  in  the  right  path  and  point  out  the  way  in  which  we  may 
perpetuate  our  free  government." 

These  sentiments,  falling  upon  the  ears  of  patriotism, 
impressed  themselves  upon  the  early  policy  of  the  State, 
and  his  executive  influence  was  as  propitious  as  his  legisla- 
tive and  diplomatic  services  had  been  valuable. 

But  it  was  not  long  before  he  was  called  upon  to  serve 
his  country  in  another  sphere.  When  the  bill  providing 
for  the  annexation  of  Texas  passed  the  United  States 
Congress  it  was  evident  that  war  with  Mexico  was  inev- 
itable.  The  Mexican  Minister  at  Washington  demanded 
his  passports  and  left  the  country,  and  a  Mexican  army  im- 
mediately crossed  the  Rio  Grande.  Texas  was  called  upon 
to  furnish  four  regiments  of  volunteers.  They  were  soon 
organized,  and  Governor  Henderson  was  Authorized  and  re- 
quested by  the  Legislature  to  take  command  of  the  new 
regiments  of  Texas  troops ;  but  at  the  time  of  their  de- 
parture for  the  seat  of  war  he  was  confined  to  his  bed.  A 
week  later  he  started  in  a  carriage,  without  an  escort, 
though  it  was  necessary  to  pass  in  close  proximity  to  a 
large  body  of  Mexican  troops,  and  safely  joined  the  United 
States  army.  On  the  third  day  of  the  battle  of  Monterey 
he  led  the  Second  Texas  regiment  in  person,  and  during 
the  attack  was  cut  off  from  his  men  while  reconnoitering, 


JAMES    PINCKNEY    HENDERSON.  191 

and  was  compelled  to  crawl  upon  his  hands  and  knees,  as 
Bonaparte  did  at  Vienna,  in  order  to  reach  his  command. 
Hon.  Jefferson  Davis,  whose  command  was  near  that  of 
General  Henderson,  in  describing  this  circumstance,  says:  — 

"On  the  third  and  last  day  of  the  attack,  when  night 
was  closing  around  us,  and  we  were  near  to  the  main  plaza, 
we  learned  that  we  were  isolated ;  that  orders  had  been  sent 
to  us  to  retire  ;  that  the  supports  had  been  withdrawn,  and 
that  we  were  surrounded  by  a  large  number  of  the  enemy. 
A  heart  less  resolved,  a  mind  less  self-reliant  than  Hender- 
son's might  have  doubted,  wavered,  and  been  lost.  The 
alternative  was  presented  to  him  of  maintaining  a  post 
which  he  was  confident  we  could  not  hold,  or  of  retirins:, 
when  it  was  doubtful  whether  we  could  cut  our  way  through 
the  enemy:  he  asked  no  other  question  than,  'Are  we 
ordered  to  retire  ! '  On  learning  that  such  was  the  fact,  he 
decided,  at  whatever  hazard,  to  obey ;  and  narrowly  on 
that  occasion  escaped  with  his  life.  The  sense  of  duty 
rose  with  him  superior  to  all  other  considerations  ;  and  he 
obeyed  an  order  which  he  might  have  been  justified  in  dis- 
obeying, because  of  the  dangers  to  which  it  would  subject 
him."  Again  says  Mr.  Davis:  "  He  was  gentle  as  a  lamb 
in  the  hour  of  peace  and  in  the  midst  of  his  friends ;  but 
bold  as  the  lion  in  the  face  of  danger,  and  when  confronted 
by  an  enemy." 

He  was  one  of  the  commissioners  appointed  by  General 
Taylor  to  negotiate  with  General  Ampudia  for  the  surrender 
of  Monterey,  and  for  his  services  in  that  battle  Congress 
voted  him  a  sword.  He  was  soon  after  appointed  a  major- 
general  in  the  army  of  the  United  States,  and  was  therefore 
entitled  to  the  pay  of  that  office  as  well  as  his  salary  as 
Governor  of  Texas  ;  but  so  high  was  his  sense  of  honor 
and  probity  in  the  discharge  of  public  duties,  that  he  de- 
clined to  accept  a  dollar  of  his  salary  or  any  compensation 
from  Texas  while  he  held  his  position  in  the  United  States 
army.  After  the  close  of  the  war  he  resigned  his  commis- 
sion in  the  army  and  resumed  his  duties  as  Governor  of 
Texas ;  and  at  the  expiration  of  his  term,  declining  a  re- 
nomination,  he  returned  to  the  practice  of  his  profession, 


192  BENCH  AND  BAR  OF  TEXAS. 

which  he  continued  until  1857,  when,  upon  the  death  of 
General  Rusk,  he  was  almost  unanimously  chosen  his  suc- 
cessor in  the  United  States  Senate.  He  accepted  the  posi- 
tion with  reluctance.  His  health  had  become  feeble.  He 
felt  that  his  life  was  drawing  to  a  close,  and  he  desired  to 
spend  his  last  days  in  the  quiet  of  retirement,  but  he  yielded 
again  to  the  general  voice  of  the  people.  In  deference, 
however,  to  the  entreaties  of  his  friends  he  delayed  his  de- 
parture for  the  Federal  capital.  His  health  continued  to 
decline;  but,  impelled  by  an  unswerving  sense  of  duty  and 
a  desire  to  be  upon  the  field  of  his  labors,  he  undertook  the 
journey,  and,  having  tarried  a  short  time  amid  the  orange 
groves  of  Cuba,  with  painful  exertion  he  reached  Wash- 
ington and  took  his  seat  in  the  Senate.  But  he  occupied  it 
only  a  few  days  before  a  fatal  reaction  ensued,  and  his  spirit 
passed  away  in  the  midst  of  admiring  and  sympathetic 
friends. 

While  in  Paris  he  met  Miss  Frances  Cox,  daughter  of 
Mr.  John  Cox,  of  Philadelphia,  who  was  residing  in  Paris 
for  the  purpose  of  educating  his  daughters,  and  they  were 
married  in  the  city  of  London  in  1839.  She  was  a  lady  of 
fine  intellectual  and  social  accomplishments,  and  was  highly 
esteemed  by  the  citizens  of  San  Augustine,  where  she  long 
resided. 

General  Henderson  was  par  excellence  one  of  the  finest 
lawyers  that  ever  adorned  the  bar  of  Texas,  and  he  would 
have  been  an  ornament  to  any  bar  in  any  age  or  country. 
He  was  distinguished  for  his  mental  vigor,  clear  and  pene- 
trating perception,  and  for  the  accuracy  and  perspicuity  of 
his  reasoning.  He  had  mastered  the  fundamental  principles 
of  the  common  law,  and  his  varied  and  extensive  practice 
endowed  him  with  an  accomplished  experience  in  all  the 
branches  of  jurisprudence,  which  commanded  the  greatest 
success  —  the  best  proof  of  his  ability  and  professional 
excellence. 

He  was  a  man  of  high  sense  of  honor,  and  held  veracity 
as  one  of  the  most  sacred  qualifications  in  every  capacity  of 
life.  It  is  said  of  him  that,  while  negotiating  with  the 
French  court  for  the  recognition  of  his  country,  an  event 


JAMES    PINCKNEY    HENDERSON.  193 

upon  which  the  fate  of  Texas  depended,  he  was  asked  what 
the  population  of  his  country  was,  and  being  ashamed  to 
say  what  he  thought  it  was,  and  unable  to  prevaricate  even 
in  the  deceitful  field  of  diplomacy,  he  appealed  to  a  French 
nobleman,  who  was  a  friend  of  Texas  and  had  just  re- 
turned from  that  Republic,  who  promptly  replied  that  the 
population  was  about  a  million.  The  French  courtiers, 
though  astonished  at  the  response,  were  too  polite  to  ques- 
tion the  accuracy  of  the  statement,  and  the  population  of 
Texas,  which  at  that  time  did  not  exceed  perhaps  fifty 
thousand,  was  put  down  in  diplomatic  figures  about  a 
million. 

As  a  statesman  and  patriot,  his  qualities  glowed  with 
equal  lustre,  and  his  name  will  ever  glitter  in  the  annals  of 
Texas  in  glaring  association  with  its  youthful  glory,  and 
will  be  handed  down  to  the  last  corridor  of  time  as  that  of 
a  man  of  great  probity,  courage,  and  talent,  which  he  de- 
voted to  the  service  of  his  country,  the  elevation  of  his 
profession  and  his  fellow-man. 


194  BENCH   AND    BAR   OF   TEXAS. 


ROBERT    M.    WILLIAMSON. 


Robert  M.  Williamson,  one  of  the  most  eminent  of  the 
early  Texas  lawjers,  was  born  in  the  State  of  Georgia, 
about  the  year  1806.  His  educational  advantages  were 
such  only  as  the  common  schools  of  that  period  afforded, 
and  these  opportunities  were  arrested  when  he  was  but  fif- 
teen years  of  age  by  an  attack  of  white  swelling  which  con- 
fined him  to  his  bed  for  two  j^ears  and  rendered  him  a  crip- 
ple for  life.  The  disease  stiffened  the  joint  of  his  knee  and 
and  made  it  necessary  for  him  to  wear  a  wooden  leg,  which 
caused  him  to  be  widely  known  as  "  three-legged  Willie." 
He  was,  however,  a  bright  and  ambitious  boy,  and,  during 
his  confinement,  devoted  himself  to  the  study  of  mathe- 
matics and  the  languages,  his  knowledge  of  which  was  ex- 
celled by  but  few  of  his  cotemporaries. 

At  an  early  age  he  prepared  himself  for  the  bar,  to  which 
he  was  admitted  at  the  age  of  twenty-one  years.  He 
entered  at  once  upon  the  practice  of  his  profession,  and 
acquired  a  large  business  and  a  wide  professional  reputa- 
tion. But  in  consequence  of  an  unfortunate  event,  which 
reflected  upon  him  no  discredit,  he  determined  to  seek  a 
home  in  the  wilds  of  Texas  ;  to  which  he  emigi;ated  about 
the  year  1826  and  located  at  San  Felipe.  Here  he  soon 
mastered  the  Spanish  language,  and,  having  acquired  a  thor- 
ough knowledge  of  the  land  laws  of  Spain  and  Mexico,  en- 
tered upon  a  successful  professional  career.  He  became  the 
adviser  and  confidential  agent  of  the  famous  Benjamin  R.  Mi- 
lam and  contributed  largely  to  the  successful  fulfillment  of  his 
colonial  contracts.  He  was  also  a  warm  friend  of  the  two 
Jacks,  the  Whartons,  Col.  Frank  Johnson  and  other  con- 
genial spirits  of  the  liberal  party,  whose  patriotic  efforts, 
even  at  that  early  day,  foreboded  the  dawning  independence 


ROBERT   M.  WILLIAMSON.  195 

of  Texas.  He  devoted  his  energies  to  the  accomplishment 
of  a  final  separation  of  Texas  from  Mexico,  and  so  active 
and  energetic  were  his  efforts  in  this  respect  that  he  became 
especially  obnoxious  to  the  Mexican  government.  In  the 
affair  at  Turtle  Bayou  and  in  all  the  incipient  steps  which 
led  to  the  revolution,  as  well  as  during  its  progress,  he  acted 
a  prominent  and  efficient  part.  He  raised  troops,  aroused 
the  colonists  to  a  sense  of  their  wrongs,  and  commanded 
a  company  of  cavalry  stationed  at  Bastrop,  where  he 
rendered  efficient  service  in  protecting  the  frontier.  Mr. 
Yoakum,  the  author  of  a  history  of  Texas,  says:  "  After 
a  thorough  and  minute  investigation  of  the  records  and  his- 
tory of  Texas  I  am  constrained  to  say,  that  Robert  M.  Will- 
iamson did  as  much,  if  not  more,  than  any  other  man  in 
precipitating  and  sustaining  the  revolution  of  1835. 

Upon  the  organization  of  the  judiciary  of  the  Eepublic 
in  1836,  Williamson  was  selected  to  fill  the  position  of  judge 
of  the  Third  Judicial  District,  and  changed  his  residence  to 
the  town  of  Washino;ton.  The  task  of  establishino-  rules 
of  judicial  procedure  in  the  midst  of  a  people  who  had 
recognized  no  law  but  the  strong  arm  of  military  power, 
and  of  eliminatino;  order  out  of  the  discordant  elements  of  a 
revolution  was  difficult,  and  requii'ed  the  utmost  firmness  and 
prudence.  But  Judge  Williamson  was  equal  to  all  the  de- 
mands of  his  position,  and,  having  set  the  machinery  of 
justice  into  a  smooth  and  regular  motion,  he  retired  from 
the  bench  and  resumed  his  practice  at  the  bar. 

In  1840  he  was  elected  to  represent  Washington  county 
in  the  Congress  of  the  Republic  and  held  this  position  by 
re-election  until  1845,  when  he  was  elected  to  a  seat  in  the 
Legislature  of  the  State  ;  and  with  the  exception  of  one 
term,  served  in  one  or  the  other  branches  of  that  body  until 
1850,  and  never  resumed  his  practice.  The  exciting  events 
of  the  period  of  his  political  career  engaged  his  energies  and 
led  his  mind  into  channels  of  thought  and  into  habits  in- 
compatible with  the  jealousy  of  law,  and  the  bar  lost  a 
brilliant  genius. 

In  1850  he  was  a  candidate  for  Congress  and  was  defeated 
by  a   few  votes  by  Volney  E.  Howard,  upon  which  he  re- 


196  BENCH  AND  BAR  OF  TEXAS. 

tired  to  a  small  farm  near  Independence,  in  Washington 
County.  In  1857,  he  had  a  severe  attack  of  sickness, 
which  seriously  impaired  his  mind,  and  which  was  aggra- 
vated by  the  death  of  his  wife  which  occurred  shortly 
afterward.  From  these  combined  shocks  neither  his  health 
nor  his  mind  ever  recovered,  and  he  died  on  the  22d  of 
December,  1859. 

Judge  Williamson  was  a  man  of  brilliant  talents  and  an 
able  lawyer,  and  his  knowledge  of  law  was  due  perhaps 
more  to  his  genius  than  to  any  steady  or  prolonged  appli- 
cation. His  comprehension  was  intuitive.  The  flashes 
of  his  intellect  illumined  every  subject  upon  which  his  mind 
rested,  and  he  grasped  the  merits  of  a  case  with  an  avidit}^ 
which  no  subtlety  of  combination  could  parry,  and  no  speci- 
ousness  of  reason  could  evade.  He  was  a  man  of  remarkable 
force  of  character  and  of  dauntless  courage,  and  possessed 
great  influence  over  the  sympathies  and  passions  of  the 
varied  elements  which  characterized  the  society  of  the 
Western  border.  His  generous,  unselfish  spirit,  and 
amiable  manners  captivated  the  people,  and  they  idolized 
him. 

As  an  orator,  he  was  the  Patrick  Henry  of  Texa.s,  and, 
like  him,  his  oratory  was  of  that  kind  which  stirred  the 
heart  while  it  swayed  the  mind  of  his  audience.  He  was 
one  of  the  few  lawyers  of  whom  it  may  be  said  that  a 
natural  eccentricity,  and  an.  overweening  propensity  for 
ludicrous  quaintness  and  badinage  never  impaired  the  most 
implicit  faith  in  his  sincerity,  nor  weakened  the  force  of  his 
gravest  argument ;  but,  on  the  other  hand,  the  force  of  his 
wit  was  blended  with  the  power  of  wisdom.  It  was  not 
with  him,  as  Dr.  Johnson  says  of  Shakespeare,  an  irrecon- 
cilable fondness  for  "a  mere  quibble  which  allured  him 
from  the  dignity  and  profundity  of  his  disquisitions,"  nor 
the  "Cleopatra  for  which  he  lost  the  world,  and  was  con- 
tent to  lose  it,"  but  it  was  the  aroma  which  sprung  from 
the  blossoms  of  his  genius. 

With  such  a  blending  and  adjustment  of  pre-eminent 
qualities  and  gifts,  the  career  of  Judge  Williamson  f.Mshes 
like  a  meteor  across  the  early  annals  of  Texas  ;  and,  had  it 


ROBERT    M.  WILLIAMSON.  197 

been  cast  in  the  midst  of  more  favorable  circumstances, 
would,  no  doubt,  have  adorned  the  jurisprudence  of  the 
State . 

Though  dwelling  in  the  midst  of  speculation  and  easy 
opportunities  for  the  acquisition  of  independence  and 
wealth,  he  seems  to  have  had  no  desire  for  the  accumula- 
tion of  property.  His  generous  and  improvident  disposi- 
tion precluded  him  from  the  paths  of  economy,  and  he 
often  felt  and  endured  the  pecuniary  embarrassment  and 
domestic  straight  which  Juvenal  calls  I'es  angusta  domi. 

While  Judge  Williamson  was  noted  for  his  sudden  flashes 
of  wit  and  pleasing  humor,  he  was  much  addicted  to  spells 
of  melancholy,  which  foreboded    the  mental  infirmity  to 
which  he  became  a  victim.     But  he  was  always  kind  and 
courteous  in  his  demeanor,  and  took  a  paternal  interest  in 
the  young  men  at  the  bar,  extending  to  them  at  every  op-    ] 
portunity  a  helping  hand  and  kind  words  of  encouragement.    L 
He  had  but  one  fault,  one  which  often  pervades  the    pur-    / 
lieus  of  professional  eminence,  but  it  was  lost  in  the  train  / 
of  his  virtues. 


198  BENCH  AND  BAK  OF  TEXAS. 


WILLIAM   H.  Jack. 


William  Henry  Jack  was  born  in  Wilkes  County,  Georgia, 
on  the  12th  of  April,  1806.  His  father,  Patrick  Jack,  was 
for  several  years  a  prominent  member  of  the  Leo^islature  of 
Georgia,  and  commanded  a  regiment  during  the  war  of 
1812.  His  grandfather  was  Captain  James  Jack,  of  Char- 
lotte, North  Carolina,  who  bore  on  horseback  the  famous 
Mecklenburg  Declaration  of  Independence  to  the  Colonial 
Convention  at  Philadelphia,  and  who  subsequently  com- 
manded a  company  in  the  war  for  independence. 

The  educational  advantages  of  William  H.  Jack  were  the 
best  that  the  schools  of  the  period  afforded,  and,  having 
graduated  with  honor  at  the  University  of  Georgia,  and 
prepared  himself  for  the  bar,  he  removed  to  Tuscaloosa, 
Alabama,  and  began  the  practice  of  his  profession.  In 
1828  he  represented  Jefferson  County  in  the  Legislature  of 
Alabama,  and  in  1830,  actuated  by  a  spirit  of  enterprise 
and  adventure,  he  removed  to  Texas,  and  located  at  San 
Philipe  de  Austin,  which  was  at  that  time  the  professional 
and  political  metropolis  of  the  Province,  and  a  place  of 
much  business  activity. 

Here  Mr.  Jack  entered  zealously  upon  the  pursuit  of  his 
profession  with  every  prospect  which  energy,  culture  and 
thorough  trainino;  could  offer.  But  in  1832  an  event 
occurred  which  led  him  to  turn  his  attention  to  political 
affairs,  inspired  him  with  new  aims  and  gave  a  new  color  to 
his  life.  His  brother,  Patrick  C.  Jack,  William  B.  Travis 
and  Monroe  Edwards  having  incurred  the  displeasure  of 
Col.  Bradburn,  the  commander  of  the  Fort  of  Anahuac, 
were  arbitrarily  arrested  and  imprisoned  by  the  command 
of  that  officer.  Mr.  Jack  immediately  proceeded  to  the 
fort    for  the  purpose  of    ascertaining  the    nature   of  the 


WILLIAM    H.  JACK,  199 

offense,  if  any,  with  which  the  prisoners  were  charged,  and 
either  to  secure  their  release  or  obtain  a  trial  for  them 
before  the  civil  authorities.  But  Bradburn  treated  the 
object  of  his  mission  with  contempt,  and  informed  him  that 
the  prisoners  would  be  sent  to  Vera  Cruz  and  tried  by  a 
military  court.  Well  knowing  what  would  be  the  result  of 
this  proceedinof,  he  returned  with  a  sad  heart  to  San  Philipe, 
and  havino;  assembled  some  of  his  friends,  announced  to 
them  the  circumstances  and  result  of  his  visit  to  Anahuac. 
Resistance  was  determined  upon,  and  he  was  sent  out  to  arouse 
the  colonists  to  a  sense  of  their  wrongs,  and  promote  meas- 
ures of  defense.  In  the  meantime  the  news  of  the  arrest 
of  the  three  citizens  spread  rapidly,  and  caused  great 
excitement  among  the  colonists  upon  the  Brazos  and  Trinity, 
and  in  other  sections.  Volunteers  assembled  from  all  the 
settlements,  and  were  organized  under  the  command  of 
Francis  W.  Johnson.  The  relief  proceeded  at  once  towards 
Anahuac,  but  finding  that  Bradburn  was  being  supported 
and  reinforced  by  the  commander  of  the  post  of  Velasco, 
they  determined  to  attack  that  fort  immediately.  Velasco 
was  taken,  Bradburn  released  his  prisoners,  and  abandoned 
the  fort  of  Anahuac;  and  thus  began  the  opening  campaign 
of  the  Texas  Revolution. 

Mr.  Jack  was  the  author  of  the  "Turtle  Bayou  Resolu- 
tions," adopted  during  their  expedition  against  Anahuac, 
which,  while  they  declared  the  fidelity  of  the  colonists  to 
the  Mexican  Constitution,  demanded  in  unmistakable  terms 
the  rights  and  liberties  of  the  people,  and  was  the  first 
public  remonstrance  of  the  Texans  against  Mexican  oppres- 
sion. 

During  the  war  which  followed  he  acted  a  conspicuous 
part,  and  was  devoted  to  the  cause  of  Texas  independence. 

In  1835  he  Avas  a  member  of  the  Committee  of  Safety  for 
the  jurisdiction  of  Columbia.  He  had  no  turn  or  ambition 
for  military  rank.  He  was  a  private  trooper  in  the  com- 
mand that  captured  Goliad,  and  fought  in  the  ranks 
in  the  battle  of  San  Jacinto.  After  the  close  of  the 
war  he  was  appointed  Secretary  of  State  by  President 
Burnet.     In  1836  he  was  elected  to  a  seat  in  the  Conirress 


200  BENCH  AND  BAR  OF  TEXAS. 

of  the  Republic,  and  was  chairman  of  the  judiciary  com- 
mittee. He  served  in  that  body  continuously  until  the  year 
1844,  when,  having  contracted  the  yellow  fever  while  on  a 
visit  to  Galveston,  he  died  with  that  disease  in  Brazoria 
County,  on  the  20th  of  August,  1844,  a  few  days  after  the 
death  of  his  brother,  Patrick,  who  died  in  Houston  with 
the  same  malady. 

Mr.  Jack  was  a  distinguished  lawyer  of  his  day,  and  con- 
sidered one  of  the  ablest  at  the  Texas  bar ;  and  had  his  life 
been  spent  in  more  settled  times,  in  the  midst  of  peaceful 
pursuits  and  under  a  well  organized  jurisprudence,  his  pro- 
fessional record  would  have  been  eminent.  Thoroughly 
educated  and  well  versed  in  fundamental  principles,  he  pos- 
sessed the  qualities  of  an  able  advocate  and  the  qualifica- 
tions of  a  great  lawyer.  These  consisted  of  a  combination 
of  learning,  noble  traits  of  character  and  tine  social  accom- 
plishments. He  was  a  man  of  fascinating  manners,  mild 
and  forbearing  in  his  intercourse  with  the  many  reckless 
and  uncouth  characters  of  the  country,  with  whom  his  pro- 
fessional business  brought  him  in  contact.  He  was  a  forci- 
ble and  graceful  orator.  He  possessed  a  laclea  uhitas  of 
diction  and  the  vox  argentea,  so  highly  commended  by  Cicero. 
He  was  selected  by  his  countrymen  to  deliver  the  address  of 
congratulation  and  welcome  upon  the  return  of  General 
Austin  from  Saltillo,  where  he  had  for  two  terms  repre- 
sented his  people  in  the  Legislature  of  the  State  of  Coa- 
huila  and  Texas.  In  this  speech,  Mr.  Jack,  in  addressing 
the  father  and  founder  of  Texas,  said :  — 

"  Such  a  boon,  then,  as  is  due  to  him  who  has  faithfully 
discharged  his  duties,  we  grant  you,  with  an  assurance  that 
the  man  whom  the  people  have  delighted  to  honor,  still 
has  our  most  unbounded  confidence.  The  occasion  of  your 
most  unexpected  return  to  Texas  will  be  long  remembered. 
The  present  is  an  epoch  in  the  political  affairs  of  our 
country  on  which  the  pen  of  the  historian  will  dwell  with 
peculiar  pleasure.  In  conclusion,  I  can  not,  perhaps, 
better  express  my  own  feelings  and  those  of  our  common 
countrymen  than  by  saying:  Well  done,  good  and  faith- 
ful servant;  thou  art  welcome, thrice  welcome,  to  thy  home 


WILLIAM    H.  JAClf.  201 

and  to  thy  friends ;  and  may  health  and  happiness  always 
attend  thee  ! ' ' 

Cut  off  in  the  meridian  of  a  useful  life,  the  death  of 
William  H.  Jack  was  a  great  loss  to  his  country,  and  had 
he  lived  the  allotted  time  of  man  his  talents  and  patriotism 
would  have  added  new  embellishment  to  the  days  of  an- 
nexation and  to  the  bar  of  the  State  of  Texas. 


202  BENCH  AND  BAR  OF  TEXAS. 


James  Webb. 


This  eminent  lawyer  and  good  man  was  born  in  Fairfax 
County,  Virginia,  in  the  year  1792.  He  was  well  educated 
and  was  admitted  to  the  bar  in  his  native  State,  but  soon 
afterward  removed  to  Jones  County,  Georgia,  where  he 
practiced  his  profession  with  distinction  and  success.  He 
subsequently  settled  at  Webbville,  in  Florida,  a  place 
named  foi  him,  on  the  Chipola  river.  Here  his  eminence 
as  a  lawyer  became  so  distinguished  that  he  was  appointed 
judge  of  the  United  States  Court  for  the  district  of  Florida 
and  held  his  courts  at  Key  West  and  Tallahassee. 

In  1838  he  removed  to  the  Eepublic  of  Texas  and  located 
at  Houston,  but  soon  afterward  settled  at  Austin.  He  was 
Secretary  of  State  and  Attorney-General  under  the  admin- 
istration of  President  Lamar,  and  was  sent  by  him  in 
company  with  General  Barnard  E.  Bee  as  Minister  and 
Agent  to  the  City  of  Mexico.  In  1841  he  was  elected  to 
the  Senate  of  the  Republic  and  was  re-elected  to  the  three 
succeeding  Congresses,  in  which  he  was  chairman  of  the 
Judiciary  Committee  of  the  Senate  and  a  member  of  the 
Committee  on  Foreign  Relations. 

I  In  1840  he  returned  to  the  bar  and  practiced  in  copart- 
nership with  Judge  F.  A.  Morris,  and  afterward  with  Judge 
W.  S.  Oldham.  He  was  an  active  worker  in  the  cause  of 
annexation  and,  while  not  a  member  of  the  Convention  of 
1845,  he  assisted  in  framing  the  articles  of  confederation 
between  Texas  and  the  United  States.  On  the  organization 
of  the  judiciary  of  the  State  in  1846,  he  was  appointed 
judge  of  the  Fourteenth  Judicial  District,  and  held  that 
position  at  the  time  of  his  death,  which  occurred  on  the 
1st  of  November,  1856,  while  on  his  way  to  hold  court  at 
Goliad. 


JAMES    WEBB.  203 

The  author  regrets  that  in  consequence  of  the  loss  of 
family  papers  and  records  he  has  not  been  able  to  obtain 
more  information  in  reo^ard  to  the  early  life  of  this  ac- 
complished lawyer.  Prodigal  with  learning  and  research, 
he  had  no  superior  at  the  Texas  bar,  and  was  the  most  able 
district  judge  of  his  time  upon  the  Texas  bench. 

In  the  case  of  the  State  v.  Jones,  18  Texas,  874,  tried 
before  him  in  the  District  Court,  in  which  he  decided  that 
in  prosecutions  for  misdemeanors  incurring  only  a  pecuniary 
j&ne  the  case  may  be  submitted  to  the  court  upon  an  agreed 
statement  of  facts  as  in  civil  cases,  and  that  the  overseer 
of  a  road  can  not  be  held  liable  for  failure  to  repair  a  road 
within  an  incorporated  town,  on  appeal  being  taken.  Chief 
Justice  Hemphill  ordered  his  opinion  in  the  District  Court 
to  be  incorporated  in  the  transcript  and  published  as  the 
opinion  of  the  Supreme  Court.  This  was  certainly  a  hio-h 
compliment,  and  is  the  only  instance  of  the  kind  within 
the  author's  knowledo;e. 

Above  his  last  resting  place  in  the  cemetery  at  Goliad, 
rises  a  marble  shaft,  erected  by  his  noble  and  affectionate 
daughter,  Mrs.  Mott,  of  Galveston,  upon  which  are  inscribed 
on  one  side,  the  simple  words:  — 

"  James  Webb,  died  November  1st,  1856,  aged  64 
years;"  and  on  the  opposite  side,  the  plain,  touching  line: 
"  Sacred  to  the  memory  of  my  father." 

Thus  oftentimes  lives  the  only  story  of  departed  worth  ; 
but  Judge  James  Webb  needs  no  monumental  trophies  or 
storied  inscriptions  to  perpetuate  his  memory;  it  lives 
upon  the  pages  of  the  history  and  jurisprudence  of  his 
country. 


204  HENCH    AND    liAIi    OF    TEXAS. 


EBENEZER    ALLEN. 


Ebenezer  Allen,  a  gentleman  prominent  among  those  who 
adorned  the  early  jurisprudence  of  Texas,  was  a  native  of 
Maine,  and  having  attained  an  excellent  education,  was 
admitted  to  the  bar  in  that  State.  He  emigrated  to  Texas 
during  the  early  period  of  the  Republic,  and,  being  an 
able  lawyer,  was  made  Attorney-General  under  the  second 
administration  of  President  Houston,  and  filled  the  same 
office  during  the  Presidential  term  of  Anson  Jones.  In 
1849  he  was  elected  Attorney-General  of  the  State,  and 
served  in  that  capacity  during  the  administration  of 
Governor  Bell. 

His  eminence  as  a  lawyer,  and  his  efficiency  as  the  counsel 
of  the  State  were  amply  verified  by  the  prolonged  demand 
for  his  talent.  He  was  also  an  accomplished  diplomatist, 
and  acted  a  prominent  part  in  the  negotiations  which  led  to 
the  annexation  of  Texas  to  the  Union.  While  serving  as 
Attorney-General  under  President  Jones,  he  performed  also 
the  duties  of  Secretary  of  State,  and  conducted  an  import- 
ant and  interesting  correspondence  with  Mr.  A.  J.  Donelson, 
the  Minister  of  the  United  States  to  the  Texas  Republic.  The 
following  characteristic  letter  is  illustrative  of  the  events 
immediately  preceding  the  annexation,  and  its  conse- 
quence —  the  war  with  Mexico : 

"  Department  of  State, 
<'  Washington,  Texas,  May  19,  1845. 

"  The  undersigned,  Attorney-General  of  the  Republic  of 
Texas^  charged  ad  interim  with  the  direction  of  the  Depart- 
ment of  State,  respectfully  invites  the  attention  of  the 
Hon.  Mr.  Donelson,  Minister  Charge  d' Affairs  of  the 
United  States,  near  this  Government,  to  the  following  con- 


EBENEZEU    ALLEN.  205 

sideratious  respecting  the  interests  of  the  two  countries, 
whether  viewed  in  the  existing  attitude  of  their  mutual 
relations,  or  in  that  of  their  probable  and  prospective  con- 
nection. 

"  It  can  not  have  escaped  the  notice  of  the  Hon.  Mr.  Donel- 
son,  that,  from  the  tenor  of  the  late  communications  of 
General  Almonte  to  the  President  of  the  United  States,  when 
demanding  his  passports  as  Minister  Plenipotentiary  and 
Envoy  Extraordinary  of  the  Government  of  Mexico,  Texas 
is  still  claimed  by  the  latter  as  one  of  its  departments,  and 
that  belligerent  measures  are  threatened  to  maintain  this 
claim;  also,  that  from  the  newspaper  accounts  of  the 
termination  of  all  diplomatic  intercourse  with  the  American 
Minister  at  Mexico,  the  same  belligerent  attitude  is  mani- 
fested by  a  circular  alleged  to  have  been  addressed  to  the 
representatives  of  England  and  France  at  that  court. 

"  From  the  tone  of  these  manifestoes,  a  new  invasion  of 
the  territory  of  Texas  may  reasonably  be  apprehended  if 
the  proposals  lately  received  from  the  United  States  for  the 
annexation  of  Texas  to  the  Federal  Union  should  be 
accepted  by  Texas ;  of  which  result  the  sure  indications  of 
the  popular  will,  exhibited  from  the  various  positions  of  the 
Republic,  present  to  the  mind  an  assurance  so  strong  as  to 
challenge  conviction,  and  leave  scarcely  a  possible  room  for 
doubt. 

"  For  the  reasons  suggested,  the  undersigned  deems  it  his 
duty  to  respectfully  inquire  of  Mr.  Donelson  whether, 
under  such  circumstances,  calculated  to  excite  the  reasonable 
apprehensions  of  the  people  of  Texas,  and  especially  to 
disturb  the  tranquility  of  the  settlements  along  her  western 
frontiers,  it  would  not  be  alike  proper  and  consistent  for 
the  United  States  to  extend  its  protection  to  this  Republic? 

"  The  people  of  Texas  would  regard  the  presence  of  the 
requisite  force  on  their  frontiers  in  no  other  light  than  as 
an  act  of  justice  and  friendship,  properly  accorded  during 
the  pending  of  the  measures  in  progress  for  annexation, 
and  as  an  indication  of  the  aid  justly  due  them  in  the  com- 
pletion of  the  constitutional  steps  yet  necessary  to  their 
admission  into  the  Union. 


206  BENCH  AND  BAR  OF  TEXAS. 

"The  performaace  of  the  conditions  required  by  the 
United  States  of  Texas,  in  acting  upon  the  terms  of  over- 
ture for  annexation,  necessarily  subjects  the  people  of  this 
Republic  to  very  onerous  expenses,  the  burthen  of  which 
operates  with  far  greater  severity  in  consequence  of  the 
non-payment  of  the  sums  due  to  this  Government  from  the 
United  States  for  claims  arising  in  the  cases  of  Snively  and 
the  collectoral  district  of  Red  River. 

"  The  undersigned  can  not  for  a  moment  entertain  the  be- 
lief  that  the  United  States  will  require  that  Texas  shall 
alone  sustain  these  burthens  ;  and  especially  in  the  event  of 
a  renewal  of  the  war  by  Mexico,"  that  this  Republic  will  be 
expected  to  bear  exclusively  its  burthens  ;  since,  in  reality, 
such  a  war  would  be  hastened  and  occasioned  by  the  acts, 
and  aimed  at  the  interests  no  less  of  the  United  States  than 
of  Texas. 

*«  To  this  subject  the  undersigned  has,  by  direction  of  the 
President,  sohcited  the  attention  of  the  Hon.  Mr.  Donel- 
son,  and  has  been  authorized  by  him  to  say  that,  in  case  of 
the  anticipated  emergency,  the  ])assage  of  the  United 
States  ta'oops  through  the  Texan  Territory  to  its  western 
frontier  will  be  welcomed  and  facilitated  by  the  constituted 
authorities  as  well  as  by  the  people  of  the  country. 

"  The  undersigned  renews  to  Mr.  Donelson  the  assurances 
of  his  distinguished  consideration  and  regard,  and  remains 
his  most  obedient  servant. 

*'Ebenezer  Allen." 

To  this  communication  Mr.  Donelson  replied,  that  he 
was  instructed  by  the  President  of  the  United  States  to  say 
that  as  soon  as  the  existing  Government  and  Convention  of 
Texas  should  accept  the  terms  of  annexation  offered  by  the 
United  States,  he  would  then  conceive  it  to  be  both  his 
right  and  duty  to  defend  the  State  against  the  attacks  of 
any  power,  and  that  if,  in  the  meantime,  the  necessar\' 
emergency  should  arise^  troops  would  be  furnished  to  repel 
an  invasion. 

After  the  expiration  of  his  term  as  Attorney-General  of 
the  State  in  1853,  Mr.  Allen  retired   from  official  life  and 


EBENEZER    ALLEN.  207 

resumed  the  practice  of  bis  profession.  He  afterwards  be- 
came deeply  interested  in  the  construction  of  raih-oads,  and 
was  one  of  the  projectors  and  early  managers  of  the  Texas 
Central  Road.  But  when  the  aggressions  of  the  North 
upon  the  institutions  of  the  South  culminated  in  1860  in  an 
organized  and  avowed  hostility  and  an  "irrepressible  con- 
flict," he  was  as  desirous  of  withdrawing  the  Lone  Star 
from  the  banner  of  the  Union  as  he  was  of  placing  it  there 
in  1845  ;  and  when  the  war  began  he  entered  the  Confed- 
erate service,  and  died  in  Virginia  in  1863. 


208  BENCH  AND  BAK  OF  TEXAS. 


JAMES    WILLIE. 


This  distinguished  lawyer  was  born  in  Wilkes  County, 
Georgia,  on  the  5th  day  of  January,  1823.  His  educational 
opportunities  were  confined  to  his  early  youth,  and  having 
enjoyed  during  that  period  only  such  advantages  as  the 
common  schools  of  his  nativity  afforded  ,  he  was  thrown 
an  orphan  upon  his  own  resources.  But  possessed  of  an 
active  mind,  a  combative  energy  and  commendable  aspira- 
tion, he  sought  only  for  an  opportunity  to  rise  above  the 
circumstances  and  trammels  of  his  early  life,  and  devoloped 
the  germs  of  a  bright  genius  and  the  elements  of  a  noble 
character. 

He  left  his  paternal  home  before  he  had  reached  the  age  of 
his  majority  and  boldly  throwing  himtelf  into  the  life  of 
manhood,  emigrated  to  Texas  and  located  near  Independ- 
ence, in  Washington  County,  where  he  was  encouraged  and 
aided  by  his  uncle,  Dr.  Asa  Hoxie,  an  eminent  and  affluent 
citizen  of  that  county.  Here  he  prepared  himself  for  the 
bar,  began  the  practice  of  his  profession,  and  resided  dur- 
ing the  greater  portion  of  his  life. 

In  1846  he  was  elected  to  represent  his  county  in  the  first 
Legislature  of  Texas,  which  was  convened  under  circum- 
stances requiring  the  wisest  and  best  men  of  the  State,  and 
his  talents  and  discretion  were  conspicuous  in  the  varied 
and  difficult  proceedings  involving  the  task  of  framing  laws 
in  compliance  with  the  requirements  of  the  new  Constitu- 
tion and  of  putting  the  machinery  of  the  State  government  in 
proper  motion.  He  was  considered  one  of  the  ablest  and 
most  useful  members  of  the  body,  and  as  a  recognition  of 
his  eminent  services,  he  was  re-elected  to  the  second  Legis- 
lature, and    afterwards,    declining  all  political  honors  and 


JAMES    WILLIE.  209 

discarding  all  official  aspirations,  he  devoted  himself  closely 
and  vigorously  to  the  practice  of  his  profession. 

In  1856  he  was  made  the  nominee  of  the  Democratic 
party  for  the  position  of  attorney-general,  and  was  elected 
by  a  large  majority  of  the  popular  vote.  He  discharged 
the  duties  of  that  office  with  great  honor  to  himself  and  in 
a  manner  highly  serviceable  to  the  State,  and  at  the  expira- 
tion of  his  term,  declining  re-election,  he  retired  finally 
from  official  life,  and,  with  one  exception,  devoted  the  re- 
mainder of  his  days  to  the  demands  of  an  extensive  prac- 
tice. 

In  pursuance  to  an  act  of  the  Legislature  of  Texas,  passed 
in  1854,  Mr.  Willie  was  appointed  by  Governor  Pease  to  co- 
operate with  John  W.  Harris  and  O.  C.  Hartley,  in  amending 
revising  and  arranging  both  the  civil  and  criminal  laws  of 
the  State,  and  in  dividing  their  labor  the  task  of  revising  and 
compiling  the  civil  laws  was  assigned  to  Mr.  Hartley,  while 
Messrs.  Willie  and  Harris  proceeded  jointly  to  arrange  and 
codify  the  criminal  laws  ;  and  the  excellent  Penal  Code  and 
Code  of  Criminal  Procedure  of  Texas  are  the  results  of 
their  labors.  Pursuant  to  the  act  Mr.  Willie  was  appointed 
to  prepare  their  indices  and  superintend  their  publication, 
which  he  accomplished  without  material  error  in  the  most 
convenient  form.  These  Codes  were  adopted  by  the  Legis- 
lature in  1856,  and  contain  all  the  criminal  laws  recognized 
as  of  force  in  the  State. 

Mr.  Willie  was  a  man  of  great  natural  power  of  mind. 
His  talent  was  brilliant  and  his  energy  indomitable;  these 
enabled  him  to  climb  continuously  and  rapidly  to  a  hio-h 
place  of  professional  eminence.  He  was  a  man  of  versatile 
o;enius  and  varied  learning.  His  mind  was  of  the  hio-hest 
analytical  order,  developed  and  matured  by  severe  trainino-. 
His  perception  was  acute  and  vigilant,  quick  to  seize  upon 
the  gist  of  a  proposition,  and  profound  and  searching  in  its 
penetration.  His  judgment  tutored  to  exactness  by  a  thor- 
ough understanding  and  balanced  by  caution  and  correct 
association  was  rarely  at  fault  in  determining  the  real  char- 
acter and  merits  of  a  legal  question,  and  he  was  one  of  the 
best  practitioners  at  the  Texas  bar.  His  logic  was  verified 
U 


210  BENCH  AND  BAR  OF  TEXAS. 

by  a  chain  of  irrefutable  points,  linked  with  sound  reason, 
and  his  briefs  were  always  well  prepared  and  well  argued. 
Supported  by  an  ample  store  of  precedent,  strong  powers 
of  analogy  and  parity  of  reason,  and  above  all  by  a  thorough 
knowledge  of  statute  laws,  his  positions,  even  amid  the 
lurid  merits  of  a  doubtful  case,  were  always  well  fortified 
and  exercised  a  cogent  bearing  upon  conviction. 

His  personal  qualities  were  such  as  adorn  the  best  minds, 
and  the  best  characters.  He  was  a  man  of  the  highest 
sense  of  honor.  Stern  and  inflexible  in  the  performance 
of  duty,  yet  amiable  and  kind  in  his  disposition,  punctij- 
lious  in  gentlemanly  amenities  and  professional  ethics,  and 
was  an  ornament  to  the  bar  and  society. 

During  his  practice  Mr.  Willie  was  associated  with  several 
gentlemen  of  distinction,  among  them  Judge  W.  S.  Day, 
of  Austin,  and  his  younger  brother.  Chief  Justice  Asa  H. 
Willie.  His  last  partner  wa^  the  gallant  Col.  W.  P. 
Rodgers,  the  place  of  whose  death  and  the  charge  he  made 
are  told  and  pointed  out  to  every  stranger  on  the  heights 
that  overlook  Corinth. 

Mr.  Willie  was  married  in  early  life  to  Miss  Sallie 
Johnson,  the  accomplished  daughter  of  Judge  Thomas 
Johnson,  of  Washington  County,  and  who  at  the  time  of 
his  death  in  1848,  was  the  attorney  for  the  Washington 
judicial  district.  She  is  said  to  have  been  a  most  beautiful 
and  lovely  woman,  and  crowned  his  life  with  the  highest 
domestic  felicity.     He  died  at  Houston  in  1863. 


O.  C.  HARTLEY.  211 


O.  C.  Hartley. 


Oliver  Cromwell  Hartley  was  born  in  Bedford  County, 
Pennsylvania,  on  the  31st  of  March,  1823,  where  his  an- 
cestors, who  emigrated  from  England,  settled  soon  after 
the  American  Revolution.  He  was  educated  at  Franklin 
and  Marshall  College,  from  which  he  was  graduated,  and 
honored  with  the  valedictory  address  of  his  class  in  1841. 
He  afterwards  studied  law  in  the  office  of  Samuel  M. 
Barclay,  an  eminent  lawyer  of  Bedford,  and  at  the  age  of 
his  majority  was  admitted  to  the  bar  and  began  the  practice 
of  his  profession.  In  1845  he  was  married  to  Miss  Susan 
C.  Davis,  of  Bedford,  and  in  1846  removed  to  Texas  and 
located  at  Galveston.  The  Mexican  war  was  now  the  object 
of  public  attention  and  interest,  and  a  call  was  made  for 
volunteers  to  rescue  the  little  army  of  Gen.  Taylor  from 
its  perilous  position  on  the  Rio  Grande.  Mr.  Hartley  vol- 
unteered as  a  private,  and  hastened  with  his  company  to 
the  seat  of  war,  which  he  reached  soon  after  the  battles  of 
Palo  Alto  and  Resaca  had  been  fought,  and  which  enabled 
the  American  commander  to  assume  the  offensive,  and  there 
was  no  immediate  need  for  the  services  of  the  company  to 
which  he  was  attached.  On  the  organization  of  Colonel 
Johnson's  regiment,  he  was  elected  a  lieutenant  in  the 
company  from  Galveston,  which,  having  been  disbanded 
during  the  summer,  he  returned  to  that  city,  and  resumed 
his  practice  with  intense  application. 

The  statutes  of  the  State  were  at  that  time  arranged  in 
much  confusion,  and  the  members  of  the  bar  greatly  felt  the 
inconvenience  occasioned  by  the  want  of  a  sufficient  digest. 
Mr.  Hartley  prepared  a  synoptical  index  of  the  laws  for 
his  own  use,  which  became  the  basis  of  his  admirable 
Digest  of  Texas  Laws.     This  work  was  begun  in  1848,  and 


212  BENCH  AND  BAR  OF  TEXAS. 

was  submitted  to  the  Legislature  in  the  spring  of  1850, 
which  authorized  the  Governor  to  subscribe  for  one  thousand 
five  hundred  copies  for  the  use  of  the  State.  His  digest 
full}'"  met  the  wants  of  the  profession,  and  was  justly 
regarded  as  a  work  of  great  merit  and  perfection. 

In  1851  he  was  elected  to  represent  Galveston  County  in 
the  Legislature,  in  which  he  was  distinguished  as  an  efficient 
and  useful  member.  It  was  said  of  him  that  "  he  was  noted 
for  the  frankness  and  independence  of  his  bearing,  and  his 
refusal  to  enter  into  the  intrigues  and  cabals  by  which  legis- 
lation is  so  often  controlled." 

While  a  member  of  the  Legislature  he  was  appointed 
reporter  of  the  decisions  of  the  Supreme  Court,  and  held 
this  office  until  his  death.  His  skill  as  a  reporter  is 
recognized  as  eminent.  His  analysis  is  accurate  and 
thovough ,  and  his  syllabi  present  a  clear  and  concise  exposi- 
tion of  law.  He  was  especially  apt  and  felicitous  in 
eliminating  distinctive  principles  and  establishing  legal 
results  from  complicated  relations  and  views  arising  from 
a  combination  of  facts,  and  his  efforts  greatly  aided  in  the 
development  of  the  peculiar  system  of  Texas  jurisprudence. 

In  February,  1854,  he  was  appointed  by  the  Governor 
one  of  the  three  commissioners  authorized  by  the  Legisla- 
ture "to  prepare  a  code,  amending,  supplying,  revising, 
digesting  and  arranging  the  laws  of  the  State."  The  other 
members  of  the  commission  were  John  W.  Harris  and 
James  Willie,  and  in  their  division  of  the  labor,  the  prep- 
aration of  a  "  Code  of  Civil  Procedure  "  was  assigned  to 
Mr.  Hartley.  To  this  work  he  applied  himself  with  intense 
application,  and  with  an  ambition  that  the  civil  code  of 
Texas  should  be  superior  to  that  of  any  other  State  in  the 
Union;  and  as  an  adjunct  to  its  value  and  merits  he  pre- 
pared a  complete  system  of  forms  to  be  used  in  all  civil 
proceedings;  but  the  State  was  not  prepared  to  adopt  a 
new  civil  code,  and  its  publication  was  postponed. 

The  assiduity  with  which  he  pursued  his  labors  upon  this 
work,  and  which  was  afterwards  unremittedly  applied  to 
his  duties  as  reporter  and  the  demands  of  his  profession, 
finally  undermined  a  naturally  robust  and  vigorous  consti- 


O.   C.  HARTLEY.  21  O 

tutioii.  He  became  a  martyr  to  his  industry  and  ambition, 
and  died  of  apoplexy  of  the  brain  at  his  residence  in  the 
city  of  Galveston  on  the  13th  of  January,  1859. 

Mr.  Hartley  was  a  thorough  scholar.  Possessed  of  a 
patient  fondness  for  investigation  and  the  acquisition  of 
knowledge,  he  had,  from  his  early  youth,  devoted  his  life 
to  its  pursuit,  and  his  mind  was  disciplined  by  a  thorough 
and  systematic  training,  and  expanded  by  constant  intel- 
lectual nourishment.  Before  he  left  his  native  State  he  had 
attracted  the  attention  of  Judge  Jeremiah  Black,  who  was 
at  that  time  chief  justice  of  Pennsylvania,  whose  friend- 
ship he  secured  and  retained.  He  had  also  won  the  interest 
and  esteem  of  Mr.  Buchanan,  who  gave  him  flattering  tes- 
timonials as  a  sessame  to  public  confidence  in  Texas. 

As  a  lawyer,  his  philosophical  turn  of  mind  led  him  to 
closely  investigate  the  relations  of  things,  and  to  study  their 
correct  association  ;  hence  his  skill  in  analysis  was  acute, 
and  his  powers  of  comparison  and  parity  of  reason,  of  a 
high  order.  He  was  careful  in  the  selection  of  his  prem- 
ises, and  when  conscious  of  their  correctness  his  conclusions 
were  deduced  in  a  clear  and  logical  train.  He  had  accus- 
tomed himself  to  look  at  both  sides  of  a  question,  and  per- 
ceiving the  proper  line  of  attack,  he  was  prepared  to  adopt 
the  most  effectual  line  of  defense. 

Notwithstanding  his  devotion  to  his  profession,  and  his 
ambition  to  attain  a  high  position  at  the  bar,  Mr.  Hartley 
took  a  deep  interest  in  the  political  issues  of  his  day,  and 
sought  to  measure  all  doubtful  questions  by  the  authority 
of  the  Constitution.  He  was  a  good  constitutional  lawyer, 
and  his  patriotism  was  kindled  by  the  discussion  of  its  in- 
terpretation and  the  merits  of  its  provisions.  He  was  ex- 
emplary in  his  private  and  social  life.  Eeared  by  a 
Cliristian  mother,  he  was  early  guided  into  the  walks  of 
piety,  and  at  his  death  was  a  member  of  the  Episcopal 
Church.  He  was  one  of  the  few  precocious  youths  whose 
after  life  realized  the  hopes  of  parental  ambition  and  the 
promises  of  early  years.  He  possessed  a  high  sense  of 
honor,  and  his  conduct  was  guided  by  an  enlightened  judg- 


214  BENCH  AND  BAR  OF  TEXAS. 

ment  and  sensitive  conscience.  When  the  Legislature 
authorized  the  Governor  to  subscribe  for  his  digest  it  pre- 
scribed that  the  binding  should  be  law  calf,  and  when  his 
publishers  remonstrated  against  that  kind  of  binding  and 
suggested  law  sheep,  the  usual  material  for  such  work,  he 
insisted  that  it  should  be  bound  in  the  material  designated 
by  the  Legislature,  though  it  was  apparent,  that  the  require- 
ment was  the  result  either  of  ignorance  or  inadvertence. 
His  works  will  preserve  his  name  and  memory  as  long  as 
there  remains  an  annal  of  Texas  jurisprudence. 


THOMAS    J.  JENNINGS.  215 


THOMAS  J.  Jennings. 


Thomas  Jefferson  Jennings,  an  eminent  lawyer  and 
Attorney-General  of  Texas,  was  born  in  Shenandoah  County, 
Virginia,  in  the  month  of  October,  1801.  His  father, 
William  Jennings,  was  sheriff  of  that  county  for  a  number 
of  terms,  and,  in  1808,  represented  it  in  the  Legislature  of 
Virginia.  He  subsequently  removed  to  Kentucky  and  set- 
tled in  Todd  County,  where  the  subject  of  this  sketch  was 
chiefly  reared  and  prepared  for  college.  He  graduated  with 
first  honors  at  the  Transylvania  University  in  1825,  and 
afterward  taught  a  school  in  Tennessee  two  or  three  terms, 
during  which  he  prepared  himself  for  the  bar. 

In  1828  he  began  the  practice  of  law  at  Paris,  Tennes- 
see, but  shortly  afterward  removed  his  office  to  Hunting- 
ton, where  he  entered  upon  the  path  of  professional 
distinction  in  which  he  continued  to  advance  during  the 
remainder  of  his  life.  In  1835  he  emigrated  to  Mississippi 
and  settled  in  Yazoo  City,  where  he  obtained  a  large  and 
lucrative  practice.  In  1840  he  removed  to  Texas  and 
located  in  San  Augustine,  at  that  time  the  Temple  Bar  of 
the  young  Kepublic,  at  which  many  eminent  lawyers  and 
judges  began  their  successful  career ;  but  having  remained 
one  year  at  San  Augustine  he  located  permanently  at  Na- 
cogdoches, where  he  practiced  in  copartnership  with  Judge 
W.  B.  Ochiltree  until  his  talents  and  ability  were  recognized 
and  confirmed  by  official  promotion. 

In  1852  he  was  elected  Attorney-General  of  the  State, 
and  was  re-elected  in  1854.  He  declined  a  re-election  in 
1856  against  the  popular  wish  that  he  should  continue  in 
that  office,  and  retired  to  his  plantation  near  Alta,  in  Chero- 
kee County.  But  the  efficiency  of  his  public  services  were 
too  highly  appreciated  to  be  dispensed  with,  and  in  1857 


216  BENCH  AND  BAR  OF  TEXAS. 

he   was   chosen  to   represent   that   county   in   the   Legis- 
lature. 

He  was  strongly  Southern  in  his  views  and  sentiments 
and  favored  prompt  and  vigorous  measures  of  resistance 
to  the  threatening  attitude  of  the  incoming  administration 
of  President  Lincoln  toward  the  institutions  of  the  South. 
He  was  a  member  of  the  Texas  secession  convention  in 
1861,  in  which,  with  a  conscientious  conviction  of  right,  he 
cast  his  fortune  and  sacred  honor  with  the  fate  of  the  Con- 
federacy. He  was  soon  afterward  stricken  with  paralysis, 
by  which  he  was  confined  to  his  bed  for  nearly  two  years 
and  never  fully  recovered  from  the  effects  of  the  attack; 
but  having  removed  in  1864  to  Tyler,  he  formed  a  copart- 
nership with  Thomas  Selman  and  continued  his  practice 
there  until  1877,  when  he  removed  to  Fort  Worth,  which 
was  the  field  of  his  last  professional  labors.  He  died  at 
the  latter  place  on  the  20th  of  September,  1881. 


JOHN   A.  WHARTON.  217 


John  a.  Wharton. 


The  subject  of  this  sketch  was  born  m  Nashville,  Ten- 
nessee, during  the  month  of  April,  1809,  His  parents 
were  natives  of  Virtriniti.  His  father,  William  Wharton, 
was  born  and  reared  in  Albemarle  County,  and  his  mother, 
whose  maiden  name  was  Judith  Harris,  was  reared  in  the 
adjoining  county  of  Nelson.  They  removed  to  the  neigh- 
borhood of  Nashville  soon  after  their  marriage  and  were 
among  the  pioneer  settlers  of  that  country. 

John  lost  his  father  when  he  was  about  seven  years  of 
age,  and  in  a  short  period  his  misfortune  was  more  than 
doubled  by  the  death  of  his  excellent  mother.  Thus  situated, 
his  uncle,  Jesse  Wharton,  who  was  also  a  citizen  of  Nash- 
ville, became  the  guardian  of  his  person  and  his  little 
fortune.  He  gave  him  the  best  opportunities  for  acquiring 
an  education  that  Nashville  could  then  afford ;  but  John  is 
said  to  have  been  averse  to  the  discipline  and  application 
necessary  to  attain  distinction  as  a  scholar;  yet  he  was  an 
ambitious  and  aspiring  youth,  and  as  soon  as  he  was 
qualified,  chose  the  law  as  his  profession,  and  began  a 
vigorous  preparation  for  the  bar. 

Having  obtained  his  license,  and  finding  the  bar  at 
Nashville  crowded  with  many  lawyers  of  eminence,  he  saw 
but  little  immediate  prospect  for  one  of  his  age  and  attain- 
ments, and  determined  to  remove  to  New  Orleans  and  seek 
his  fortune  by  the  practice  of  his  profession  in  that  city. 
He  was  but  twenty-one  years  of  age  when  he  located  in 
New  Orleans, where  he  maintained  himself  by  his  practice  for 
about  four  years. 

In  the  meantime  his  older  brother  had  married  a  Texan 
lady  and  had  become  a  resident  of  this  State;  and  it  was 
apparent  that  the  Texans  would  soon  declare  their  inde- 
pendence of  Mexico  and  establish  a  government  for 
themselves.     This  prospect  opened  a  new  and  invitins:  fi^'^ 


218     •        BENCH  AND  BAR  OF  TEXAS. 

to  young  Wharton.  He  had  been  reared  in  the  immediate 
neighborhood  of  General  Jackson,  of  whom  he  was  a  great 
admirer,  and  drawing  his  inspirations  from  the  fame  and 
sentiments  of  that  famous  chieftain,  he  immediately  and 
ardently  espoused  the  cause  of  Texas. 

In  1833  he  abandoned  his  residence  and  his  practice  in 
New  Orleans  and  removed  to  Brazoria  County,  where 
his  brother  then  resided,  and  from  that  time  became  a 
zealous  advocate  of  the  Texas  Revolution.  The  history 
of  those  times  shows  that  as  early  as  the  23d  of  June, 
1835,  the  municipality  of  Cohimbia,  in  the  county  of 
Brazoria,  had  the  honor  of  first  calling  for  a  consultation. 
The  citizens  of  the  county  generally  approved  this 
course,  and  at  a  public  meeting  held  on  the  15th  of  August 
following,  instructed  their  committee  of  safety  to  prepare 
an  address  to  all  the  people  of  Texas,  requesting  union  and 
concert  of  action  for  a  general  consultation  of  all  the 
municipalities. 

In  furtherance  of  this  movement,  John  A.  Wharton, 
Branch  T.  Archer,  William  H.  Jack  and  others,  were 
appointed  a  committee,  who,  on  the  20th  of  August 
issued  an  address  which  was  dispatched  to  all  the  jurisdic- 
tions, advising  that  an  election  should  be  held-  in  each 
municipality  on  the  5th  of  October,  for  the  purpose  of 
choosing  five  delegates  to  represent  them  in  a  consultation 
to  be  convened  at  Washington  ten  days  afterwards. 

In  this  and  in  all  subsequent  proceedings,  John  A. 
Wharton  was  among  the  leading  spirits.  In  the  conflict 
which  shortly  ensued,  he  was  the  adjutant-general  of  Gen- 
eral Houston,  and  bore  a  conspicuous  part  on  the  battle- 
field of  San  Jacinto.  When  the  onset  was  over  and  the 
Mexicans  surrendered  and  threw  down'  their  arms,  he  was 
as  solicitous  to  save  the  lives  of  the  prisoners  as  he  had 
been  but  a  few  moments  before  to  win  the  battle. 

It  will  be  borne  in  mind  that  this  occurred  within  a  very 
short  time  after  the  massacre  of  the  Texas  soldiers  at  the 
Alamo  and  Goliad;  and  the  soldiers  at  San  Jacinto,  burn- 
ins:  to  reveiioe  the  deaths  of  those  who  had  been  their  com- 
rades  in  arms,  charged  upon  the  camp  of  the  enemy  with 
the  inspii'ing  war  cry,  "  Remember  the  Alamo  I  Remember 


JOHN   A.  WHARTON.  219 

Goliad!"  So  intense  was  the  excitement,  that  they  con- 
tinued to  massacre  the  Mexicans  after  they  had  surrendered 
and  thrown  down  their  arms.  To  arrest  this,  Wharton 
threw  himself,  as  it  were,  between  the  parties,  and  com- 
manded the  Texan  soldiers  to  cease  firing  upon  the  enemy. 
Finding  that  one  man  disobeyed  his  command  and  was 
about  to  fire  upon  a  Mexican,  Wharton  drew  his  pistol  and 
leveled  it  at  the  disobedient  soldier,  commanding  him  to 
desist.  At  the  same  time,  so  great  was  the  excitement  that 
three  other  Texan  soldiers  leveled  their  rifles  upon  Whar- 
ton, determined  to  shoot  him  if  he  executed  his  threat. 

Thus  this  brave  and  noble  man  saved  the  life  of  a  sup- 
pliant enemy  at  the  imminent  peril  of  his  own. 

On  the  day  after  the  battle,  when  General  Santa  Anna 
was  taken  to  the  headquarters  of  Houston,  in  the  disguise 
of  a  common  soldier,  Wharton,  fearing  that,  if  he  was 
recognized  by  the  Texans,  they  might,  in  their  blind 
fury,  put  him  to  death,  had  recourse  to  a  ruse  whereby 
he  could  command  the  attention  and  acquire  influ- 
ence over  the  minds  of  the  soldiers.  Having  assembled 
them  by  a  call  "  To  arms  !  "  he  addressed  them  as  follows: 
"  Soldiers,  on  yesterday  each  individual  in  this  gallant 
army  covered  himself  with  glory,  winning  the  freedom  of 
our  country  by  conquering  a  force  more  than  twice  our 
numbers.  You  have  defeated  in  battle  and  taken  as  pris- 
oner the  commanding  general  of  the  Mexican  army,  Santa 
Anna,  the  President  of  eight  millions  of  people.  He,  who 
but  yesterday  deemed  himself  the  arbiter  of  others'  lives, 
is  now  a  suppliant  for  his  own.  Kemember,  soldiers,  that 
the  truly  brave  are  always  generous,  always  merciful.  The 
eyes  of  the  world  will  soon  be  attracted  towards  us  by  the 
glory  of  our  achievements.  Let  us  do  nothing  to  tarnish 
our  arms;  but,  on  the  contrary,  let  us  prove  to  mankind 
that  we  are  as  generous  as  we  are  brave."  This  speech 
perhaps  saved  the  illustrious  prisoner  from  assassination  and 
the  army  of  San  Jacinto  from  disgrace. 

The  next  office  held  by  Colonel  Wharton  was  that  of 
Secretary  of  the  Navy.  After  the  Mexican  army  had 
abandoned  Texas  and  the  courts  were  organized,  in  the 
year  1837,  he  opened  an  office  in  the  town  of  Brazoria  and 


220  BENCH  AND  BAR  OF  TEXAS. 

ensased  a2:ain  in  the  practice  of  law.  E.  M.  Pease,  Esq., 
became  his  partner,  and  they  practiced  together  under  the 
firm  name  of  Wharton  &  Pease,  until  the  month  of  April, 
1838.  Then  John  W.  Harris  became  a  partner  of  the  firm, 
and  the  three  practiced  together  under  the  name  of  Harris 
&  Pease.  Their  practice  soon  became  extensive,  and  they 
were  engaged  in  the  most  important  cases. 

In  the  summer  of  1838  Colonel  Wharton  was  elected  to 
represent  the  county  of  Brazoria  in  the  House  of  Repre- 
sentatives of  the  Republic.  He  repaired  to  Houston 
(which  was  the  seat  of  government),  in  the  fall  of  1838, 
to  be  present  at  the  meeting  of  Congress.  There  he  was 
taken  violently  ill  and  died  in  the  latter  part  of  that  year. 

John  A.  Wharton  was  a  man  of  a  superior  caste  of  mind. 
He  was  self-relying ;  formed  his  opinions  from  his  own 
judgment,  and  was  of  a  stern  and  independent  will.  He 
was  regarded  as  one  of  the  leading  lawyers  of  the  Republic. 
At  the  bar  he  was  esteemed  an  able  competitor.  He  was 
a  logical  and  eloquent  debater,  and  his  high  moral  stand- 
ing gave  great  weight  to  his  arguments.  The  consequence 
was  that  he  practiced  his  profession  with  great  success. 

Amono- those  with  whom  he  associated  he  had  the  warmest 
and  most  devoted  friends.  These  he  deserved  to  have; 
for  those  who  knew  him  best  were  at  a  loss  which  to  admire 
most — the  elevation  of  his  mind  or  the  generosity  of  his 
heart. 

I  can  not  better  conclude  this  sketch  than  by  quoting 
a  few  extracts  from  the  eulogy  pronounced  upon  Colonel 
Wharton  by  David  G.  Burnet,  the  ex-President  of  the 
Republic.  When  his  remains  were  brought  into  the 
House  of  Representatives,  and  the  members  of  Congress 
with  many  others  were  there  assembled,  the  venerable  ex- 
President  commenced  his  eulogy  thus:  "The  keenest 
blade  upon  the  battle-field  of  San  Jacinto  lies  broken  be- 
fore you." 

In  a  subsequent  portion  of  his  address  he  said,  "  A  nobler 
spirit  than  John  A.  Wharton's  does  not  adorn  the  annals 
of  Texas;  "  and  to  show  the  nobility  of  Wharton's  nature 
the  speaker  continued:  "And  all  the  oppressed  that 
wanted  strength  had  his  at  their  command." 


\ 


Gdv,  E,  M,  FeasE 


ELISHA   MARSHALL   PEASE.  221 


Elisha  Marshall  Pease. 


The  subject  of  this  memoir  was  born  in  Enfield,  Con- 
necticut, on  the  3d  of  January,  1812.  His  early  educa- 
tional advantages  were  limited  to  the  schools  of  his  native 
town  and  a  short  attendance  at  an  academy  in  West  Field, 
Massachusetts.  At  the  age  of  fourteen  years  he  was  placed 
as  a  clerk  in  a  country  store  and  early  acquired  a  knowl- 
edge of  accounts,  and  the  habits  of  promptness  and  punc- 
tuality in  business,  which  characterized  him  in  after  life  and 
insured  for  him  a  successful  career. 

While  in  New  Orleans  on  business  in  the  fall  of  1834 
he  was  allured  by  the  glowing  accounts  which  he  heard  of 
the  features  and  prospects  of  the  country  west  of  the 
Sabine,  and  determined  to  seek  a  home  and  fortune  in  its 
virgm  wastes.  He  proceeded  to  Valasco  and  thence  to  the 
frontier  settlements  on  the  Colorado  and  located  at  Mina, 
now  the  town  of  Bastrop,  where  he  began  the  study  of  law 
in  the  office  of  Colonel  D.  C.  Barrett,  who  had  just  entered 
upon  the  practice  of  the  profession.  He  pursued  his  stud- 
ies with  energy  and  vigor;  but  his  clerical  qualifications 
caused  him  soon  afterward  to  be  appointed  secretary  of  the 
Committee  of  Safety  for  the  jurisdiction  of  Mina,  and  in 
this  capacity  he  began  that  active  participation  in  public 
affairs  which  continued  with  intervals  throuo-hout  his  Ions:, 
eventful  and  useful  life. 

The  first  sounds  of  the  Texas  Eevolution  in  1835  kindled 
the  most  ardent  sentiments  of  patriotism  and  awakened 
every  energy  of  its  people.  Mr.  Pease  was  engaged  in  the  first 
skirmish  of  the  war  at  Gonzales,  and  was  soon  afterward 
made  secretary  of  the  council  of  the  Provisional  Govern- 
ment, and  held  that  position  until  the  government  ad  interim 
intervened  in  March,  1836.      So  marked  and  recognized 


222  BENCH  AND  BAR  OF  TEXAS. 

were  his  abilities  that,  although  he  was  not  a  member  of 
the  convention  which  declared  the  independence  of  Texas, 
they  were  invoked  to  assist  in  framing  the  ordinances  of 
the  new  government  and  the  Constitution  of  the  Republic. 
During  the  summer  of  1836  he  served  successively  as  chief 
clerk  of  the  navy  and  treasury  departments,  and  for  a 
short  time  acted  as  Secretary  of  the  Treasury  upon  the 
death  of  Secretary  Hardeman. 

In  November,  1836,  he  was  appointed  clerk  of  the  Judi- 
ciary Committee  of  the  House  of  Representatives,  and 
drafted  the  laws  organizing  the  judiciary  of  the  Republic, 
and  the  lavvs  creating  and  defining  the  duties  of  the 
various  comity  officers.  At  the  close  of  the  first  session 
of  Congress  in  December,  1836,  President  Houston  ten- 
dered him  the  position  of  Postmaster-General ;  but  he 
declined  the  office  and  returned  to  the  study  of  law  in  the 
office  of  Colonel  John  A.  Wharton,  of  Brazoria. 

In  April,  1837,  he  was  admitted  to  the  bar  at  the  town 
of  Washington,  but  soon  afterward  accepted  the  office  of 
Controller  of  Public  Accounts.  He  resigned  this  position 
in  the  ensuing  December  and  retired  to  Brazoria,  where  he 
resumed  the  practice  of  law  in  copartnership  with  Colonel 
John  A.  Wharton.  In  1838,  John  W.  Harris  became  asso- 
ciated with  them,  and  after  the  death  of  Colonel  Wharton, 
which  occurred  soon  after,  the  firm  of  Harris  &  Pease 
continued  for  many  years,  and  became  one  of  the  most  dis- 
tinguished in  the  State.  During  this  period  Mr.  Pease 
served  as  district  attorney  for  a  short  time,  and  after  an- 
nexation, in  1846,  was  elected  to  the  first  Legislature  from 
Brazoria  County.  In  the  business  of  this  assembly  he  took 
an  active  part,  and  was  the  author  of  the  laws  regulating 
proceedings  in  the  District  Courts  and  of  many  other  laws 
of  importance  enacted  during  that  session.  He  was  re- 
elected to  the  House  in  the  second  Legislature,  and,  as 
chairman  of  the  Judiciary  Committee,  originated  the  pro- 
bate laws  of  1848. 

In  1850  he  was  elected  to  the  Senate  in  the  third  Legis- 
islature,  and  served  during  the  regular  session  ;  but,  being 
absent  from  the  State  when  an  extra  session  was  convened 


ELISHA  MARSHALL  PEASE.  223 

by  Governor  Bell  during  that   year,    he  resigned  and  ter- 
minated his  legislative  services. 

In  1853  he  was  elected  Governor  of  the  State  and  was  re- 
elected in  1855.  The  period  of  his  administration  was  one 
of  great  prosperity,  and  measures  were  adopted  which  pro- 
moted the  permanent  welfare  of  the  State.  The  revolu- 
tionary debt  of  Texas  was  paid,  a  school  fund  of  two 
millions  of  dollars  was  created ;  alternate  sections  of  lands 
granted  to  railroads  were  set  apart  for  the  benefit  of  public 
schools;  the  lunatic  asylum,  orphan  asylum,  institutions 
for  the  deaf  and  dumb,  and  for  the  blind,  were  established, 
and  ample  grants  of  lands  were  made  for  their  support. 
One  hundred  thousand  dollars  were  set  apart  for  a  State 
university.  All  these  measures  were  recommended  by  him 
and  effected  by  his  influence.  The  expenses  of  the  State 
government  were  restrained  below  the  amount  of  revenue 
derived  from  taxation,  and  at  the  close  of  his  administration 
Texas  was  entirely  free  from  debt.  His  rejection  of  the 
attempted  deposit  of  the  spurious  Pacific  Railroad  bonds 
and  other  instances  of  watchful  care  over  the  interest  of  the 
State  saved  to  it  large  sums  of  money.  Governor  Pease 
always  acted  with  the  Democratic  party  until  the  policy  of 
secession  drove  him  from  it  in  1861.  He  did  not  think  that 
there  was  anything  in  the  situation  of  affairs  to  justify  that 
measure,  and  he  viewed  it  as  a  sure  path  to  disaster  and 
humiliation.  He  remained  in  Texas  during  the  war,  but  took 
no  part  in  public  affairs,  and  after  its  close  acted  with  the 
Republican  party.  In  1867  he  was  appointed  Provisional 
Governor  of  the  State  by  the  military  authorities  and  held  that 
oflSce  until  1869,  when  he  resigned  in  consequence  of  a  dif- 
ference of  opinion  between  him  and  the  commander  of  the 
district  in  regard  to  the  reorganization  of  the  State  govern- 
ment. He  represented  Texas  in  the  convention  at  Cincin- 
nati in  1872,  which  nominated  Horace  Greeley  for  President. 
In  1874  the  office  of  collector  of  the  port  of  Galveston 
was  offered  him  by  Secretary  Bristow,  which  he  declined, 
but  accepted  the  position  in  1879  when  it  was  tendered  him 
by  President  Hayes,  which  was  his  last  public  service.  He 
was  afterwards  vice-president   of  the  First  National    Bank 


224  BENCH  AND  BAR  OF  TEXAS. 

of  Austin,  and  died  at  Lampassas  on  the  26th  of  August, 
1883. 

Governor  Pe.ise  was  endowed  with  intellectual  talents  of 
a  high  order.  He  was  quick  to  perceive  the  character  and 
gist  of  a  proposition,  acute  in  discerning  those  features  of 
a  question  which  form  the  hinges  of  reason,  and  prompt  in 
the  exercise  of  a  sound  judgment.  He  possessed  great  in- 
tellectual independence,  and,  however  extensive  may  have 
been  his  knowledge  of  the  opinions  of  others,  always  relied 
upon  himself  for  a  satisfactory  and  conscientious  solution 
of  the  facts  and  principles  which  underlaid  the  subjects  of 
his  investigation. 

As  a  lawyer  these  qualities  rendered  him  a  safe  and  sure- 
footed guide  and  counselor.  His  conclusions  were  the  re- 
sult of  a  deep  and  patient  search  for  truth.  His  judgment 
was  sustained  by  a  calm,  impartial  and  discriminating 
mind,  and  his  views  were  maintained  with  honesty  and  can- 
dor. Few  lawyers  were  more  expert  in  determining  the 
merits  of  a  case  upon  proper  statement  of  the  facts,  and 
he  never  counseled  hopeless  or  doubtful  litigation,  but  made 
it  a  rule  to  advise  his  clients  that  a  bad  compromise  was 
often  better  than  a  good  suit. 

In  consequence  of  an  impediment  in  his  speech  he  made 
no  pretensions  to  oratory,  and  rarely  made  an  oral  argu- 
ment at  the  bar  ;  but  when  he  did  address  the  court  or  jur}^ 
notwithstandino;  his  disadvantages,  so  OTeat  was  the  confi- 
dence  reposed  in  his  judgment  and  sincerity  that  he  never 
lacked  the  most  interested  attention,  nor  failed  to  make  a 
favorable  impression.  His  briefs  were  always  clear,  fair 
and  logical,  and  while  his  patient  research  armed  him  with 
every  available  feature,  he  never  sought  an  undue  advan- 
tage. So  fixed  and  prominent  were  these  traits  that  Chief 
Justice  Wheeler  once  said  that  the  statements  of  the  facts  in 
his  briefs  were  always  so  lucid  and  just  he  could  rely  upon 
them  without  reference  to  the  record. 

Candor  and  sincerity  were  the  ruling  traits  of  his  charac- 
ter. He  followed  the  guide  of  principle  and  never  tem- 
porized with  expedient ;  but  while  he  possessed  an 
adamantine  will,  he  was  quick  to  recede  from  a  position 


ELISHA    MARSHALL    PEASE.  225 

which  could  not  stand  the  test  of  reason  and  experience. 
These  qualities  would  have  rendered  him  an  excellent  judge. 
His  decisions  would  have  been  strictly  upon  the  merits  of 
a  case,  regardless  of  the  persons  who  might  have  been  the 
parties  to  the  contest.  He  considered  the  law  as  the 
common  base  of  society,  upon  which  every  member  should 
stand  with  a  fair  and  equal  footing;  and  its  proper  admin- 
istration the  most  sacred  function  pertaining  to  human 
affairs.  The  deep  indentations  which  its  great  principles 
had  wrought  in  his  mind  met  with  reciprocal  impressions 
upon  his  heart,  and  it  was  to  him  truly  a  "  rule  of  action" 
in  all  the  relations  of  life,  which  he  delighted  to  enforce 
upon  those  who  sought  to  violate  its  precepts  or  evade  the 
dictates  of  justice.  His  accurate  perception,  acute  analysis 
and  superior  judgment  enabled  him  to  eliminate  from 
almost  every  medley  of  circumstance  or  contrariety  of 
precedent  the  principles  of  truth  and  equity.  He  was 
thoroughly  familiar  with  the  laws  of  Texas,  and  with  the 
elements  and  peculiar  combination  of  its  jurisprudence, 
which  he  knew  in  its  origin  and  in  all  the  phases  of  its 
development.  This,  with  his  unswerving  integrity  and 
known  love  of  justice,  invited  confidence  and  patronage, 
and  he  was  one  of  the  most  successful  practitioners  in  the 
State. 

His  strong  will  and  independent  interpretation  of  the 
nature  and  import  of  events  impelled  him,  while  he  was 
Provisional  Governor,  to  advocate  a  policy  obnoxious  to  a 
large  majority  of  the  Texan  people.  But  it  was  not  the 
dictate  of  partisanism,  as  charged  by  his  opponents.  He 
was  as  honest  in  his  political  convictions  as  in  his  legal 
opinions.  It  was  an  error  arising  from  the  novelty  of  cir- 
cumstances, rather  than  from  a  capricious  will  or  inimical 
design.  He  believed  that  the  tenets  and  policy  of  the 
dominant  party,  emerging  from  the  results  of  the  civil  war, 
were  permanent  and  unalterable,  and  that  the  sooner  and 
more  effectually  they  were  accepted  and  enforced,  the 
sooner  would  peace  and  prosperity  be  re-established.  But 
when,  during  the  administration  of  Governor  Davis,  he  saw 
the  iniquities  to  which  they  might  lead,  he  recoiled  from 

15 


22(3  BENCH   AND   BAR   OF   TEXAS. 

the  partisan  excesses  of  that  executive  and  threw  his  great 
influence  into  the  scale  of  conservatism. 

In  private  and  social  life,  Governor  Pease  was  a  model 
of  propriety  and  gentility.  He  carried  his  best  qualities 
into  the  circles  of  friendship  and  affection,  and  in  all  his 
dealings  with  his  fellow-men  not  a  breath  of  injustice  or 
undue  advantage  marred  the  faith  reposed  in  his  personal 
integrity.  His  word  was  deemed  a  sufficient  seal  to  any 
obligation,  and  no  man  was  more  readily  and  safely  trusted. 
He  was  congenial,  generous  and  kind-hearted,  and  his 
home  was  the  seat  of  a  genuine  and  flowing  hospitality. 
He  was  married  in  1850  to  Miss  L.  C.  Niles,  of  Windsor, 
Connecticut,  and  this  accomplished  and  most  excellent 
lady  still  maintains,  at  her  elegant  seat  near  Austin,  the 
hospitality  which,  in  his  lifetime,  welcomed  his  friends  to 
his  generous  board. 

In  all  the  relations  of  life,  he  made  the  Golden  Rule  his 
motto.  He  was  always  satisfied  with  his  own  and  coveted 
nothing  belonging  to  his  neighbors.  He  was  a  model  hus- 
band, father  and  friend,  and,  above  all,  an  honest  man  and 
a  patriot.  The  record  of  his  public  services  form  some  of 
the  brightest  pages  of  Texas  history,  and  it  would  be  diffi- 
cult to  find  a  Governor  or  statesman  who  has  done  more 
for  the  prosperity  of  his  State  and  the  happiness  of  his 
people. 

The  talisman  of  his  success  was  a  continued,  strenuous 
and  determined  effort.  He  followed  the  polar  star  of 
duty,  as  seen  through  the  glasses  of  conscious  rectitude,  and 
he  was  always  true  to  the  cause  of  virtue.  It  has  been 
said  that  the  bar  instructs  the  bench  no  less  than  it  is  in- 
structed by  it,  and,  while  Governor  Pense  never  held  a 
judicial  office,  his  genius  impressed  itself  upon  Texas  juris- 
prudence, and  his  name  will  ever  be  associated  with  the 
munificent  and  charitable  polity  which  has  become  the 
pride  and  honor  of  the  State. 

In  his  message  to  the  Legislature,  on  December  23, 
1853,  he  said  :  — 

«*In  recommending  measures  for  your  consideration,  I 
shall  mainly  confine  myself  to   a  few  of  those  important 


ELISHA  MARSHALL  PEASE.  227 

and  leading  ones  that  seem  to  have  been  designated  by 
public  opinion  for  the  action  of  the  present  Legislature,  the 
oarly  adoption  of  which  will  tend  rapidly  to  develope  the 
resources  of  the  State,  and  to  promote  the  happiness  and 
prosperity  of  its  citizens. 

''Of  these  measures,  one  of  the  most  important  is,  to 
make  a  suitable  and  permanent  provision  for  the  support  of 
public  schools.  The  highest  and  most  sacred  duty  of  a  free 
government  is,  to  provide  the  means  for  educating  its  citi- 
zens in  a  manner  that  will  enable  them  to  understand  their 
duties  and  their  obligations  ;  this,  too,  is  a  measure  that  is 
enjoined  upon  the  Legislature  by  the  Constitution. 

"  The  want  of  available  means  has  heretofore  furnished 
a  ready  excuse  for  the  neglect  of  this  duty.  But  this  no 
longer  exists.  The  State  now  has  ample  mea/ns  at  its  com- 
mand, and  an  opportunity  is  offered  to  establish  a  system 
of  public  schools  that  will  extend  its  benefits  to  every  child 
within  its  limits  ;  if  we  fail  to  embrace  it,  we  shall  be  faith- 
less to  our  duties  and  the  trust  that  has  been  reposed  in  us 
by  our  fellow-citizens. 

"It  is  respectfully  recommended,  that  two  millions  of 
dollars  of  the  United  States  five  per  cent  bonds,  now  in 
the  treasury,  shall  be  appropriated  and  set  apart  as  a  per- 
manent fund  for  the  support  of  public  schools.  That  the 
income  of  this  fund  shall  be  annually  apportioned  to  the 
several  counties  of  the  State,  according  to  the  number  of 
free  children  in  each  between  the  ages  of  five  and  sixteen 
years,  to  be  ascertained  in  such  manner  as  may  be  consid- 
ered most  convenient ;  and  that  the  amount  due  to  each 
county  shall  be  paid  over  to  the  county  treasurer  semi- 
annually, to  be  disbursed  under  the  orders  of  the  county 
courts,  to  such  teachers  as  the  parents  or  guardians  of  the 
children  may  choose  to  employ  for  their  education. 

*'  I  do  not  pretend  to  recommend  this  as  a  perfect  sys- 
tem ;  but  its  operation  will  be  simple  and  cheap  ;  it  may  be 
commenced  without  delay,  and  it  seems  to  be  better  adapted 
to  our  situation  than  any  other  system  that  has  come  under 
my  notice.  A  plan  very  similar  to  this  has  succeeded  well 
in  some  of  the  neighboring  States,  where  the  population  is 


228  BENCH  AND  BAR  OF  TEXAS. 

sparse,  like  our  own.  Time  and  experience  will  point  out 
the  defects  of  the  system  proposed,  and  enable  us  by  future 
legislation  to  perfect  and  adapt  it  to  the  situation  and  wants 
of  our  population. 

"I  would  also  recommend  that  the  amount  which  has 
already  accumulated  by  the  appropriation  of  the  one-tenth 
of  the  annual  revenue  of  the  State  derivable  from  taxation, 
be  added  to  the  principal  of  this  fund,  and  that  for  the 
future,  this  tenth  be  apportioned  in  the  same  manner  as  the 
income  of  the  fund. 

"  Under  the  present  provisions  of  the  Constitution,  the 
lands  that  have  been  donated  to  the  several  counties  for 
public  schools  can  not  be  alienated  in  fee,  nor  disposed  of 
otherwise  than  by  lease,  for  a  term  not  exceeding  twenty 
years.  In  a  State  where  land  is  so  cheap  as  it  is  here,  and 
where  so  large  a  quantity  is  in  market,  it  can  not  be  ex- 
pected that  under  these  provisions  any  benefit  will  be 
derived  from  these  school  lands  during  the  present  genera- 
tion. Much  of  it  is  located  in  large  bodies,  in  sections  of 
the  State  where  it  would  be  improved  if  subject  to  sale. 
The  policy  of  reserving  from  sale,  and  consequently  from 
cultivation,  such  large  bodies  of  land,  may  well  be  ques- 
tioned, and  I  recommend  to  your  consideration  the  propriety 
of  an  amendment  to  the  Constitution,  by  which  these  lands 
may  be  alienated  under  the  direction  of  the  Legislature, 
upon  the  petition  of  a  majority  of  the  citizens  of  the  county 
owning  the  lands. 

"  If  such  an  amendment  were  adopted,  these  lands  might 
be  subdivided  into  small  and  convenient  tracts,  and  each 
alternate  tract  might  be  sold  upon  a  long  credit,  at  not  less 
than  a  minimum  price;  the  purchaser  to  pay  an  interest  of 
six  per  cent  on  the  amount  of  his  purchase,  to  be  annually 
expended  in  the  same  manner  as  the  school  money  distrib- 
uted by  the  State.  By  adopting  this  policy,  most  of  the 
counties  would  derive  some  immediate  benefit  from  their 
school  lands,  and  the  alternate  tracts  reserved  from  sale 
would  much  more  rapidly  increase  in  value. 

"The  want  of  a  good  university  in  the  State,  where  a 
liberal  education   can  be  obtained,  is    a  serious    inconve- 


ELISHA    MARSHALL    PEASE.  229 

nience.  It  should  be  our  policy  to  furnish,  within  our  own 
limits  all  the  means  for  obtaining  an  education,  that  can  be 
had  in  any  part  of  the  Union,  so  as  to  remove  the  necessity 
of  having  to  send  our  youth  abroad  to  be  educated  among 
those  who  are  hostile  to  the  policy  and  institutions  of  the 
State. 

"The  present  seems  to  be  a  favorable  time  to  lay  the 
foundation  for  such  an  institution,  and  I  respectfully 
recommend  that  the  sum  of  two  hundred  and  fifty  thou- 
sand dollars  of  the  United  States  bonds  now  in  the  treasury, 
be  appropriated  and  set  apart  as  a  perpetual  fund,  the  interest 
of  which  shall  be  applied  to  the  erection  and  support  of  a 
State  University.  The  income  of  such  a  fund,  with  the 
amount  that  may  hereafter  be  realized  from  the  lands 
that  have  been  set  apart  by  an  act  of  the  late  Republic, 
will,  at  no  distant  period,  enable  us  to  build  up  a  univer- 
sity fully  adequate  to  all  the  wants  of  our  State.  I  am 
aware  that  these  lands  were  appropriated  for  the  establish- 
ment and  endowment  of  two  universities,  but  I  sugorest  for 

^  DO 

your  consideration,  that  it  would  be  better  to  have  one 
well  endowed  institution  of  the  kind,  than  to  apportion  our 
funds  for  the  erection  of  two,  neither  of  which  could 
atlbrd  the  advantages  which  are  furnished  by  similar  insti- 
tutions in  other  States  of  the  Union. 

"  Should  such  an  appropriation  be  made,  it  will  be 
necessary  to  pass  laws  for  the  location  of  the  proposed 
university  at  some  central  point,  convenient  to  the  entire 
State,  as  well  as  for  the  erection  of  the  necessary  buildings 
and  for  the  organization  and  government  of  the  institution. 

"  The  establishment  and  endowment  of  an  asylum  for 
lunatics,  and  an  institution  for  the  education  of  the  deaf 
and  dumb,  are  measures  that  should  commend  themselves 
to  your  consideration.  Our  census  tables  show  that  we 
have  in  our  midst  many  of  both  of  these  unfortunate 
classes,  who  have  a  claim  upon  our  sympathy  and  bounty, 
and  who  now  have  to  be  sent  away  from  their  friends  to 
distant  parts  of  the  Union,  in  order  to  obtain  the  means 
of  alleviating  and  improving  their  condition. 

"  Institutions  of  this  character  can  not  be  established  in 


230  BENCH  AND  BAR  OF  TEXAS. 

a  State  so  new  as  ours,  except  under  the  care  and  patron- 
age of  the  government,  and  I  recommend  that  the  sum  of 
five  hundred  thousand  dollars  of  the  United  States  bonds 
be  appropriated  and  set  apart  as  a  perpetual  fund,  one- 
half  for  each  of  these  institutions,  the  income  of  which 
shall  be  applied  to  their  erection  and  support.  Should 
you  concur  in  this  recommendation,  you  will  of  course 
pass  the  necessary  laws  for  their  location,  establishment 
and  government. 

"  These  appropriations  will  absorb  a  large  portion  of  the 
United  States  bonds  now  in  the  treasury,  but  the  objects 
for  which  it  is  proposed  to  use  them  are  of  great  practical 
utility,  and  will  be  productive  of  benefits  as  lasting  as  the 
institutions  under  which  we  live. 

"The  improvement  of  our  navigable  water-courses  and 
the  construction  of  railroads  are  measures  of  great  inter- 
est to  our  citizens,  and  have  deeply  engaged  public  atten- 
tion. Our  past  legislation  has  frequently  been  directed  to 
these  objects,  but  it  has  been  productive  of  little  if  any 
benefit. 

"  The  rejection,  at  the  late  election,  of  the  river  bill  of 
the  last  session,  can  not  be  fairly  considered  as  an  expres- 
sion of  the  people  against  the  policy  of  attempting  to  im- 
prove our  navigable  rivers.  That  bill  was  defective  in  its 
details,  and  made  insufficient  appropriations  for  those 
streams  that  are  susceptible  of  being  improved,  while  it 
contained  many  appropriations  for  objects  of  questionable 
utility.  It  should  be  borne  in  mind  that  our  large  rivers 
have,  without  any  improvement,  hitherto  furnished  the 
means  of  transporting  most  of  our  productions  to  a  market, 
and  we  must  continue  to  rely  upon  them  to  a  great  extent 
for  many  years,  even  if  the  construction  of  railroads  shall 
proceed  as  rapidly  as  is  anticipated  by  their  most  sanguine 
friends.  It  is  believed  that  a  moderate  expenditure  of 
money  by  the  government  would  greatly  increase  their  use- 
fulness and  add  largely  to  the  value  of  the  taxable  proi:)erty 
of  the  State.  If  such  be  the  case,  it  certainly  is  an  object 
worthy  of  your  encouragement  and  patronage. 

"  The  advantages  to  be  derived  to   our  State   from  the 


ELISHA    MARSHALL    PEASE.  231 

construction  of  railroads,  are  too  obvious  to  require 
demonstration  ;  the  necessity  for  them  is  felt  and  acknowl- 
edged by  all,  and  it  is  a  question  of  great  interest  to  our 
citizens  to  devise  and  adopt  some  policy,  by  which  we  can 
secure  their  construction  at  the  earliest  period. 

"The  limitations  imposed  by  the  Constitution  upon  the 
the  power  of  the  Legislature,  preclude  the  State  from  un- 
dertaking these  improvements  or  becoming  a  part  owner  of 
the  stock  of  any  corporation  created  for  that  purpose. 
The  active  capital  in  the  hands  of  our  own  citizens  is  insuf- 
ficient to  secure  their  construction,  but,  for  the  attainment 
of  this  object,  we  may  hold  out  sufficient  inducements  for 
the  introduction  of  capital  from  abroad.  It  can  not  be 
disguised  that  the  population  and  business  of  the  State  are 
not  such,  as  at  this  time,  to  promise  the  return  of  an  imme- 
diate profit  on  the  amount  that  may  be  invested  in  such 
enterprises.  Indeed,  it  may  well  be  doubted  whether  a 
railroad  in  any  section  of  the  State  would,  for  the  next 
five  years,  pay  an  interest  of  five  per  cent  on  the  amount 
invested,  in  addition  to  the  cost  of  repairs  and  other  ex- 
penses necessary  to  keep  the  road  in  operation.  If,  there- 
fore, we  would  invite  the  employment  of  capital  from 
abroad,  in  railroads  in  this  State,  we  must  hold  out  such 
inducements  of  ultimate  profit  as  will  compensate  the 
the  holders  of  it,  for  the  small  interest  they  will  receive 
during  the  first  years  of  its  investment.  Fortunately,  the 
large  extent  of  our  public  domain  will  enable  us  to  do  this, 
without  imposing  any  onerous  burden  on  our  citizens. 

"I  had  intended  on  this  occasion  to  present  you  my  opin- 
ions in  relation  to  the  best  mode  of  securing  the  passage 
across  our  State  of  the  proposed  railroad  to  the  Pacific 
Ocean  ;  but  this  is  now  rendered  unnecessary  by  the  bill 
which  you  have  already  passed  to  provide  for  the  construc- 
tion of  the  Mississippi  and  Pacific  Railroad.  While  the 
principal  provisions  of  this  law  are  unobjectionable,  I  think 
it  might  have  been  improved  in  some  of  its  details,  particu- 
larly in  that  provision  which  authorizes  the  company  to 
receive  patents  for  the  lands  selected  previous  to  the  comple- 
tion of  the  entire  road. 


232  BENCH  AND  BAR  OF  TEXAS. 

"  It  is  to  be  hoped  that  this  law  will  accomplish  for  the 
State  all  that  is  anticipated  by  its  friends. 

"The  duties  and  responsibilities  imposed  upon  the  Governor 
under  the  provisions  of  this  law  will  be  cheerfully  under- 
taken, and  I  shall  endeavor  to  execute  them  in  a  manner 
calculated  to  effect  the  objects  intended  by  the  Legis- 
lature. 

"In  adopting  any  general  system  for  aiding  other  com- 
panies in  the  construction  of  railroads,  we  find  ourselves 
embarrassed  by  the  numerous  charters  that  have  heretofore 
been  granted  to  individuals,  without  any  specific  designation 
of  the  routes  they  were  to  pursue,  who  still  hold  and  rely 
on  them,  although  not  a  dollar  of  capital  stock  has  ever 
been  paid.  It  is  much  to  be  regretted  that  instead  of  grant- 
inf  charters  indiscriminately  to  all  who  applied,  without 
any  assurance  that  the  applicants  were  possessed  of  the 
necessary  means  to  comply  with  their  provisions,  the  State 
did  not  first  locate  and  survey  such  routes  as  the  wants  of 
commerce  and  the  business  of  the  country  seemed  to  require^ 
and  then  grant  charters  for  these  routes  to  companies  who 
should  organize  after  a  subscription  of  stock,  with  an 
amount  actually  paid  at  the  time  of  subscribing  sufficient  to 
show  an  intention  of  prosecuting  the  work  in  good  faith . 
Had  this  course  been  pursued,  our  statute  books  would  not 
have  been  incumbered  with  railroad  charters,  many  of  them 
commencing  nearly  at  the  same  point,  and  conflicting  with 
each  other  in  the  routes  they  propose  to  pursue,  nearly  al  1 
of  which  have  expired,  or  are  about  to  expire,  without  hav- 
ing accomplished  anything  beneficial  to  the  public. 

"In  regard  to  such  charters  as  have  been  heretofore 
granted,  I  respectfully  recommend  that  no  extension  of  time 
shall  be  granted  to  any  company,  unless  satisfactory  evi- 
dence is  presented,  that  it  has  actually  commenced  the  con- 
struction of  its  road,  and  that  a  suffi  cient  amount  of  stock 
has  been  paid  to  give  a  reasonable  certainty  that  the 
road  will  be  completed.  I  would  also  suggest  that  in  all 
such  cases,  the  route  and  termination  of  the  road  shall  be 
designated,  when  this  has  not  been  done  in  the  original 
charter,  and  if  any  further  donations  of  land  are  made  to 


ELISHA  MARSHALL  PEASE.  233 

such  companies,  they  should  receive  the  patents  only  on  the 
final  completion  of  their  roads. 

*'  In  extending  aid  to  future  railroad  enterprises,  we  ought 
to  avoid  the  evils  that  have  attended  our  past  legislation  on 
the  subject. 

"  I  would  suggest  that  all  charters  hereafter  granted  to 
railroad  companies,  should  specifically  designate  the  route 
to  be  pursued  as  well  as  the  commencement  and  termination 
of  the  road.  That  they  should  appoint  commissioners  to 
receive  subscriptions  for  stock,  a  portion  of  which  should 
be  paid  at  the  time  of  subscribing,  and  whenever  a  reason- 
able amount  of  stock  has  been  subscribed  on  these  terms, 
the  stockholders  should  be  permitted  to  hold  an  election 
and  organize  the  company.  That  the  charter  should  also 
limit  the  time  within  which  the  companies  shall  commence 
their  roads,  and  prescribe  the  number  of  miles  to  be  con- 
structed from  year  to  year,  until  their  final  completion. 
The  State  should  grant  bounties  of  land  sufficient  to  induce 
capitalists  to  become  stockholders  in  companies  thus  organ- 
ized, the  land  to  be  selected  from  time  to  time,  as  the  road 
progresses,  but  no  title  to  be  issued  until  the  road  shall  be 
completed  according  to  the  terms  of  the  charter.  These 
companies  should  be  required  to  alienate  the  lands  thus  ac- 
quired within  a  limited  time  after  the  completion  of  their 
roads.  Should  this  course  be  adopted,  the  State  would 
secure  the  construction  of  valuable  works  of  internal  im- 
provement, before  she  parted  with  her  lands,  instead  of 
being  liable  to  have  the  works  abandoned  after  those  por- 
tions have  been  constructed  which  promise  an  immediate 
profit. 

"  I  would  also  suggest  that  the  alternate  sections  upon 
the  line  of  the  Mississippi  and  Pacific  road  be  granted  to 
other  roads  connecting  this  with  our  gulf  ports,  with  the 
Vicksburg  road  and  the  New  Orleans  and  Opelousas  road 
at  such  points  as  will  best  accommodate  the  different  sec- 
tions of  the  State.  Such  a  disposition  of  these  sections  is 
but  just,  since  the  portions  of  the  State  through  which 
these  branch  roads  are  to  be  built,  will  receive  no  immediate 


234  BENCH  AND  BAR  OF  TEXAS. 

benefit  from  the  Pacific  road  unless  they  are  thus  connected 
with  it. 

"  In  addition  to  the  aid  proposed  to  be  ex-tended  to  rail- 
roads in  the  manner  heretofore  indicated,  I  think  it  would 
be  good  policy  to  authorize  the  school  fund,  the  university 
fund,  and  any  other  funds  that  may  be  set  apart  by  the 
State  for  charitable  and  benevolent  uses,  to  be  loaned  out, 
from  time  to  time,  to  railroad  companies,  in  this  State,  as 
they  may  progress  with  the  construction  of  their  roads.  I 
entertain  no  doubt  in  relation  to  the  power  of  the  Legisla- 
ture to  make  this  disposition  of  these  funds.  The  period 
is  not  very  remote  when  the  United  States  bonds  will  be 
redeemable,  and  necessity  will  then  force  us,  if  we  would 
derive  an  income  from  their  proceeds,  to  make  some  invest- 
ment of  them.  If  they  can  be  securely  loaned  out,  so  as 
to  be  used  in  the  prosecution  of  works  of  improvement 
calculated  to  develope  the  resources  of  the  State,  and 
contribute  to  the  wealth  and  convenience  of  our  citizens,  it 
is  our  duty  to  make  this  disposition  of  them. 

''Should  these  views  meet  with  your  approbation,  I 
recommend  that  a  Board  of  Commissioners  be  established, 
to  consist  of  Controller,  Treasurer  and  Secretary  of  State, 
who  shall  be  authorized,  with  the  concurrence  of  the  Gov- 
ernor, to  loan  these  funds  at  six  per  cent  interest  per 
annum,  payable  semi-annually,  for  a  period  not  exceeding 
twenty  years,  to  companies  chartered  by  this  State,  for  the 
construction  of  railroads  and  other  works  of  internal 
improvement.  The  amount  loaned  to  any  company  in  no 
case  to  exceed  the  one-third  of  the  actual  cost  of  the  works 
that  have  been  constructed,  and  to  be  well  secured  by  a 
lien  on  the  property  of  the  company,  subject  to  be  enforced 
without  a  suit,  by  a  sale  after  sixty  days  '  public  notice. 

*'  The  condition  of  the  Indian  tribes  within  the  limits  of 
our  State  calls  for  some  action  on  the  part  of  the  Legisla- 
ture. Our  situation  in  relation  to  this  class  of  population 
is  different  from  that  of  any  of  the  other  frontier  States 
of  the  Union.  In  these  the  General  Government  has  the 
sole  and   exclusive    control    of    the     public    domain     over 


ELISHA    MARSHALL    PEASE.  235 

which  the  Indians  formerly  roamed,  and  under  the  power 
given  by  the  Constitution  to  Congress  to  regulate  commerce 
with  the  Indian  tribes,  that  department  has  assigned  to  them 
certain  limits  which  they  are  to  occupy,  and  regulates  all 
intercourse  between  them  and  the  whites,  and  also  between 
the  diflerent  tril)es.  Under  this  policy,  Indian  depredations 
have  ceased  for  many  years.  The  General  Government 
has  the  same  power  to  regulate  intercourse  with  the  tribes 
within  our  limits,  hut  it  can  not  be  efficiently  exercised, 
because  having  no  right  in  the  public  domain,  it  can  not  set 
apart  any  particular  district  for  their  occupation,  and  with- 
out this  their  movements  can  not  be  controlled.  I  respect- 
fully suggest  that  a  portion  of  our  vacant  domain,  remote 
from  the  settled  parts  of  the  State,  shall  be  appropriated 
for  the  temporary  occupation  of  those  remnants  of  tribes 
that  properlj^  belong  to  this  State  ;  that  all  locations  within 
the  limits  thereof  be  prohibited,  and  that  a  qualified  juris- 
diction for  Indian  purposes  be  ceded  to  the  General 
Government  for  a  term  of  years,  provided  she  will  engage 
to  remove  them  within  those  limits  and  keep  them  there, 
subject  to  her  laws  regulating  intercourse  with  the  Indian 
tribes. 

"  The  business  before  the  Supreme  Courtis  increasing  so 
rapidly  that  it  will  soon  be  impossible,  with  the  present 
number  of  judges,  to  dispose  of  the  docket  during  each 
term  ;  indeed,  the  number  of  cases  now  taken  to  that  court 
is  so  great  that  many  important  ones  are  continued  over 
from  term  to  term  for  want  of  sufficient  time  to  give  them 
that  thorough  investigation  which  the  vast  interests  involved 
require  at  the  hands  of  the  judges.  Much  of  their  time  is 
consumed  in  preparing  the  written  opinions  which  they  ave 
required  to  give  in  each  case.  By  increasing  the  number 
of  judges,  this  labor  will  be  divided,  and  more  time  given 
to  the  examination  and  decision  of  causes.  I  therefore 
recommend  an  amendment  to  the  Constitution,  so  as  to  give 
the  Legislature  the  power  to  increase  the  number  of  judges 
to  five.  Should  you  concur  in  this  recommendation,  I  sug- 
gest that  you,  at  the  same  time,  propose  an  amoodment, 
giving  to  the  Governor  power  to  fill  all  vacancies  that  may 


23(5  BENCH    AND    BAR    OF    TEXAS. 

occur  in  the  Supreme  and  Districts  Courts,  and  in  the  offices 
of  Attorney-General,  District-Attorney,  Controller,  Treas- 
urer and  Commissioner  of  the  General  Land  Office,  by 
appointment,  to  continue  in  force  until  the  vacancy  can  be 
filled  by  the  people  at  the  next  regular  election  for  State  or 
county  officers.  Under  the  present  provisions  of  the  Con- 
stitution, should  any  of  these  officers  die  or  resign,  the  office 
must  continue  vacant  until  an  election  can  be  held,  which 
will  take  several  months.  Such  an  amendment  would 
obviate  the  necessity  that  now  exists  for  frequent  elections 
at  different  periods  in  the  year,  and  subserve  the  public 
interest  by  having  these  offices  temporarily  filled,  imme- 
diately on  the  happening  of  a  vacancy. 

"  In  connection  with  this  subject,  I  feel  it  my  duty  to 
call  your  attention  to  the  inadequate  salaries  now  paid  to 
the  judges  of  both  the  Supreme  and  District  Courts.  The 
duties  of  these  offices  are  very  laborious,  and  they  should 
be  filled  only  by  men  of  stern  integrity,  and  of  superior 
legal  attainments.  It  would  seem  needless  to  argue  that, 
in  order  to  secure  men  of  qualifications  adequate  to  the 
important  and  laborious  duties  which  they  have  to  perform, 
a  just  compensation  should  be  paid  for  their  services.  It 
must  be  obvious  to  all,  that  the  present  incumbents  of 
these  offices  have  never  received  salaries  commensurate 
with  their  labors  and  merits.  I  trust  that  this  subject  will 
not  fail  to  receive  your  early  attention  and  efficient  action. 

"  Your  attention  is  invited  to  the  law  regulating  appeals 
to  the  Supreme  Court  in  criminal  cases,  under  the  provis- 
ions of  which,  in  all  cases,  not  capital,  the  prisoner,  after 
conviction,  by  taking  :m  appeal,  is  permitted  to  be  released 
on  bail.  For  several  offenses  persons  may  be  confined  to 
hard  labor  in  the  penitentiary  for  fifteen  3'^ears ;  for  others 
they  may  be  confined  in  like  manner  for  life  ;  still,  by  this 
law,  they,  by  taking  an  appeal,  are  entitled  to  bail  after 
they  have  been  convicted  by  a  jury,  and  thus  in  all  cases, 
except  treason,  and  murder  in  the  first  degree,  convicts 
have  it  in  their  power  to  purchase  exemption  from  the 
penalties  of  our  criminal  laws.  It  is  hoped  that  this  evil 
will  be  remedied  without  delay. 


ELISHA  MARSHALL  PEASE.  237 

"  It  is  believed  that  an  examination  of  our  criminal  laws 
will  show,  that  there  are  some  offenses  for  which  free  per- 
sons may  be  subjected  to  the  barbarous  punishment  of 
whipping.  These  provisions  are  inconsistent  with  the 
general  spirit  of  our  criminal  laws,  and  ought  not  longer  to 
be  retained. 

<♦  Our  laws,  both  civil  and  criminal,  in  my  judgment, 
require  a  careful  revision.  We  have  adopted,  it  is  true, 
the  best  portions  of  two  different  systems,  but  this  was  not 
done  at  the  same  time,  and  it  was  usually  effected  by  crude 
and  hasty  legislation  ;  as  a  necessary  consequence,  these 
different  parts  have  never  been  brought  to  combine  into 
one  harmonious  system.  Our  rules  of  pleading  and  of  prac- 
tice in  the  courts  are  meagre  and  exceedingly  defective. 
Our  statutes  concerning  crimes  and  punishments  were  often 
passed  without  reflection,  many  of  their  provisions  conflict 
with  each  other,  and  these,  more  than  any  other  portions  of 
our  laws,  require  to  be  carefully  revised  and  amended. 
These  are  defects  which  hasty  legislation  can  not  cure. 

"  I  would  recommend  that  you  make  a  suitable  provision 
for  the  appointment  of  a  commission  of  three  gentlemen 
learned  in  the  law,  whose  duty  it  shall  be  to  prepare  a  code 
of  civil  and  one  of  criminal  procedure  ;  and  also  a  code  of 
general  laws  or  rules  of  decision,  and  that  all  these  be 
reported  for  the  action  of  the  next  Legislature. 

'?  Should  this  be  done  with  ability  and  care,  our  system 
of  procedure  might  be  better  adapted  to  the  attainment  of 
the  ends  of  justice  than  any  other  which  has  been  devised, 
and  the  whole  of  the  rules  and  principles  of  the  general 
laws,  which  are  now  diffused  in  an  almost  endless  number 
of  text  books  and  reports,  could  then  be  contained  in  a 
single  volume.  This  would  be  accessible  to  all,  and  should 
be  adopted,  as  near  as  possible,  to  every  comprehension. 

*'  For  the  reasons  mentioned  above,  it  is  evident  that  there 
is  a  stronger  necessity  for  a  revision  and  modification  of 
our  laws  than  those  of  any  other  State  in  the  Union.  Be- 
sides, we  should  receive  aid  from  the  lights  furnished  by 
the  successful  experiments  of  several  of  our  sister  States. 
I  feel   entire   confidence  in  recommendinsr  this  measure   to 


238  BENCH  AND  BAR  OF  TEXAS. 

your  attention  as  one  calculated  to  be  productive  of  vast 
advantage  to  the  State. 

"  Our  territory  is  so  extensive  and  so  sparsely  settled 
that  but  little  is  yet  known  of  its  agricultural  and  mineral 
capacities.  This  must  continue  to  be  the  case,  if  we  wait 
for  the  slow  process  of  settlement  to  develope  them.  It  is 
believed  that  an  accurate  and  scientific  geological  survey  of 
the  State  will  disclose  sources  of  wealth  and  prosperity  that 
would  otherwise  remain  unknown  for  years  ;  besides  giving 
an  accurate  knowledge  of  wur  mineral  wealth  and  its  locali- 
ties, it  will  doubtless  show  the  capacity  of  our  soil  for  the 
production  of  many  profitable  articles  for  export,  the 
cultivation  of  which  is  now  entirely  neglected.  By  diffus- 
ing this  information  abroad,  we  shall  make  known  the 
ofreat  inducements  that  our  State  offers  to  emio;rants,  and 
insure  a  large  increase  of  population.  I  recommend  this 
measure  to  your  serious  consideration. 

•'  I  think  it  important  that  provision  should  be  made  for 
running  and  marking  the  boundary  between  Texas  and  the 
territories  of  the  United  States,  from  the  point  where  it 
leaves  Red  River  to  where  it  intersects  the  Rio  Grande. 
This  duty  might  be  imposed  upon  those  who  are  selected  to 
make  the  geological  survey,  without  incurring  much  addi- 
tional expense.  The  execution  of  any  law  that  may  be 
passed  on  this  subject  would,  of  course,  be  dependent  upon 
a  law  being  passed  by  the  Congress  of  the  United  States 
for  the  appointment  of  commissioners  on  her  part  to  join 
in  the  work.  It  is  believed  that  our  Senators  and  Repre- 
sentatives in  Congress  would  have  no  difiiculty  in  procuring 
the  passage  of  such  a  law,  if  the  initiatory  step  be  taken  on 
our  part. 

"The  penitentiary,  as  at  present  conducted,  is  a  heavy 
expense  to  the  State.  It  is  believed  that  if  the  buildings 
were  completed  and  enclosed  with  a  wall,  according  to  the 
original  plan,  and  suitable  workshops  erected,  the  labor  of 
the  convicts  might  be  let  out  to  the  highest  bidder,  for  a 
term  of  years,  for  an  amount  more  than  sufficient  to  re- 
imburse the  expense  of  their  maintenance.  Under  such 
an  arrangement,  the  contractors  should  be  required  to  em- 


ELISHA  MARSHALL  PEASE.  239 

ploy  the  convicts  either  in  manufacturing,  or  at  such  trades 
as  would  be  least  calculated  to  interfere  v  ith  the  mechanical 
industry  of  the  State.  It  is  hoped  that  this  subject  will 
receive  that  attention  from  you  which  its  importance  de- 
mands. 

"  The  laws  granting  pre-emption  rights  to  actual  settlers 
upon  the  public  domain  are  somewhat  obscure  and  conflict- 
ing in  their  provisions.  I  think  it  advisable  that  they  be 
revised  and  so  changed  as  to  grant  to  each  settler  only  two 
hundred  acres  of  land.  This  is  the  quantity  protected  by 
the  Constitution,  as  a  homestead  to  each  head  of  a  family, 
and  is  sufficient  for  farming  purposes. 

"  In  connection  with  this  subject,  I  call  your  attention  to 
the  law  in  relation  to  the  right  of  aliens  to  hold  lands. 
We  are  daily  receiving  large  accessions  to  our  population, 
by  immigration  from  foreign  countries.  The  first  wish  of 
these  immigrants,  on  their  arrival  here,  is  to  secure  a  home 
and  an  interest  in  the  soil;  but  they  are  now  denied  this 
privilege  until  they  have  resided  here  five  years  —  the  period 
required  for  their  naturalization.  In  many  of  the  States 
of  the  Union,  laws  have  been  passed  authorizing  aliens  to 
hold  lands  immediately  on  their  arrival,  provided  they  make 
a  declaration  under  oath  of  their  intention  to  become  citi- 
zens. Some  of  them  have  gone  so  far  as  to  incorporate  a 
provision  in  their  Constitution,  giving  to  aliens  all  the 
rights  of  citizens  of  the  State  at  a  period  much  earlier  than 
they  can  be  obtained  under  the  naturalization  laws  of  the 
United  States.  This  policy  has  secured  to  these  States  a 
large  portion  of  the  foreign  immigration  for  the  last  few 
years,  and  has  added  much  to  their  productions  and  wealth. 
If  the  same  liberal  policy  were  here  adopted,  similar  advan- 
tages could  not  tail  to  result  to  our  State. 

"The  State  has  heretofore  made  ample  provision  for  a 
just  and  equitable  settlement  and  payment  of  our  revolu- 
tionary debt,  and  a  portion  of  our  creditors  have  acceded 
to  the  settlement  of  their  claims,  and  received  payment 
therefor :  others  refuse  to  acknowledg-e  the  riirht  of  the 
State  to  ascertain  and  fix  the  amount  of  her  indebtedness  to 
them,  and   insist   upon  receiving   the  face  value   of  their 


240  BENCH  AND  BAR  OF  TEXAS. 

claims,  although  they  were  issued  by  the  government  at 
rates  varying  from  twenty  to  seventy  cents  on  the  dollar. 
In  consequence  of  this  refusal,  five  millions  of  the  five  per 
cent  stock  that  were  to  have  been  issued  under  the  pro- 
visions of  the  act  of  Congress,  approved  the  9th  day  of 
September,  1850,  proposmg  to  the  State  of  Texas  the  es- 
tablishment of  her  northern  and  western  boundaries,  etc., 
are  still  unavailable  to  the  State.  A  reasonable  time  has 
already  been  allowed  for  these  creditors  to  accept  of  the 
terms  proposed,  and  receive  payment  of  the  amount  due 
them.  I  therefore  respectfully  suggest  that  a  law  shall  be 
passed  designating  a  time  within  which  all  holders  of  recog- 
nized claims  against  the  State  of  Texas  shall  present  them 
to  the  Treasurer,  accompanied  with  releases  of  all  claim 
against  the  United  States  for  or  on  account  thereof,  in  the 
form  that  has  been  prescribed  by  the  Secretary  of  the 
Treasury,  and  approved  by  the  President  of  the  United 
States,  or  that  such  claims  shall  be  forever  barred  and  the 
holders  no  longer  recognized  as  creditors. 

"  The  late  pei'iod  of  your  session  at  which  I  have  an 
opportunity  to  make  this  communication,  reminds  me  of 
the  inappropriate  time  that  the  Governor  enters  upon  the 
discharge  of  his  duties.  While  the  Legislature  and  the 
Governor  are  elected  at  the  same  time,  about  seven  weeks 
intervene  between  the  commencement  of  the  labors  of  these 
different  departments  of  government.  It  is  believed  that 
if  the}-^  entered  upon  their  duties  simultaneously,  the  ses- 
sions of  the  Legislature  would  be  less  protracted,  and  a 
large  amount  of  expenditure  saved  to  the  State.  I  there- 
fore recommend  that  the  Constitution  be  so  altered  as  to  re- 
quire the  Governor  to  be  installed  at  the  commencement  of 
the  regular  sessions  of  the  Legislature. 

"  Many  other  subjects  of  legislation,  both  of  general  and 
local  interest,  which  have  not  here  been  noticed,  will  doubt- 
less suggest  themselves  to  you. 

*'  The  situation  of  Texas  at  this  time  demands  practical 
legislation. 

'*  I  trust  that  all  sectional  feelings  and  prejudices  will  be 
discarded  from  your  councils,  and  that  every  measure  will 


ELISHA    MARSHALL.    PEASE.  241 

be  examined  and  acted  upon  solely  with  reference  to  its 
merits,  and  the  effect  it  may  have  upon  the  interest  of  the 
State  at  large. 

"Our  present  condition  is  a  most  prosperous  one,  immi- 
gration and  wealth  are  pouring  into  the  State  more  rapidly 
than  at  any  former  period.  A  spirit  of  enterprise  and  im- 
provement is  now  abroad  among  our  people,  which,  if 
judiciously  fostered  and  encouraged,  will  at  do  distant 
period  enable  Texas  to  occupy  that  position  among  her 
sister  States  to  which  she  is  entitled  from  her  extent  of 
territory  and  great  natural  resources. 

"It  is  my  sincere  desire  that  you  may  be  able  hereafter 
to  reflect  that  your  labors  have  contributed  much  to  elevate 
the  moral,  social  and  political  condition  of  the  State." 

In  his  message  to  the  Legislature  in  1855,  he  said :  — 

"  I  invite  your  attention  to  the  importance  of  establish- 
ing a  State  University,  which  shall  afford  to  our  youth  all 
those  opportunities  for  obtaining  a  liberal  education  that 
are  to  be  found  in  any  part  of  the  Union.  We  can  not  ap- 
preciate too  highly  the  advantages  of  educating  our  children 
within  the  reach  of  parental  authority,  where  they  can  daily 
witness  the  practical  operation  of  our  Government,  its  in- 
stitutions and  laws,  and  become  familiar  with  the  habits 
and  sympathies  of  the  people  with  whom  they  are  to  asso- 
ciate in  after  life. 

"  To  secure  these  advantages  is  worthy  of  an  effort  on 
the  part  of  the  State,  and  I  recommend  that  the  sum  of 
three  hundred  thousand  dollars  of  the  United  States  bonds 
now  in  our  treasury,  be  appropriated  as  a  permanent  fund 
to  be  increased  by  the  proceeds  of  the  gradual  sale  of  the 
University  lands,  at  not  less  than  a  minimum  price,  after 
they  shall  have  been  subdivided  into  small  tracts,  and  that 
the  income  of  this  fund  be  applied  to  the  erection  and  sup- 
port of  ^uch  an  institution. 

"  This  will  enable  us  within  a  few  years  to  erect  the  neces- 
sary buildings,  employ  professors  in  every  branch  of  litera- 
ture and  science,  and  place  the  institution  on  a  sure  basis 
for  future  prosperity  and  usefulness. 

**  I  also  call  your  attention  to  the  necessity  of  establishing 

16 


242  BENCH  AND  UAU  OF  TEXAS. 

an  Asylum  for  Lunatics.  If  we  had  such  an  institution  in 
our  midst,  where  those  who  are  afflicted  with  insanity  could 
be  promptly  placed  under  the  care  of  persons  skilled  in  its 
causes  and  treatment,  a  large  portion  of  those  unfortunate 
persons  might  be  restored  to  reason,  and  the  condition  of 
all  greatly  alleviated. 

"  We  also  need  an  institution  for  the  education  of  the 
deaf,  dumb  and  blind,  where  these  unfortunate  classes  may 
be  taught  their  duties  and  responsibilities  as  citizens,  and 
made  useful  members  of  society. 

"  Institutions  of  this  character  are  necessary  in  every 
community,  but  they  can  not  be  founded  and  supported 
without  the  care  and  patronage  of  the  State. 

"1  therefore  recommend  that  two  hundred  and  fifty 
thousand  dollars  of  the  United  States  bonds,  now  in  our 
treasury,  be  appropriated  as  a  permanent  fund  for  the 
erection  and  support  of  a  lunatic  asylum,  and  a  like 
amount  as  a  permanent  fund  for  an  institution  for  the  edu- 
cation of  the  deaf  and  dumb  and  blind,  and  that  provision 
be  made  for  the  erection  of  these  institutions  as  soon  as  the 
income  of  these  funds  will  permit. 

"  If  we  could  create  and  encourage  among  our  citizens  a 
spirit  of  independence  and  attachment  for  their  own  State, 
we  ought  to  furnish  them  at  home  with  all  those  facilities 
for  improving  and  ameliorating  their  mental,  social  and 
physical  condition,  which  are  to  be  found  in  other  parts  of 
the  world.  We  now  have  the  means  of  doing  this  without 
imposing  onerous  burden  upon  our  citizens,  and  if  we  neg- 
lect to  avail  ourselves  of  this  opportunity,  we  shall  be  justly 
charoed  with  beino;  unmindful  of  the  hio;h  duties  and  re- 
sponsibilities  that  rest  upon  us. 

"  In  compliance  with  the  provisions  of  '  An  Act  to  pro- 
vide for  the  construction  of  the  Mississippi  and  Pacific 
Railroad,'  approved  the  21st  of  December,  1853,  proposals 
for  its  construction  were,  in  the  first  instance,  invited,  until 
the  1st  of  May,  1854,  but  before  the  arrival  of  that  period, 
it  became  apparent  that  the  time  allowed  for  receiving  pro- 
posals was  too  short,  and  it  was  extended  to  the  1st  of 
August  of  the  same  year. 


ELISHA    MARSHALL    PEASE.  243 

"  On  the  day  to  which  the  time  had  been  extended,  the 
propositions  were  opened,  and  it  was  ascertained  that  but 
one  had  been  received  which  came  within  the  provisions  of 
the  law.  This  was  accepted,  and  on  the  31st  of  August  a 
contract  was  concluded  for  the  construction  of  the  road. 

"The  contractors  subseqently  failed  to  make  such  a  de- 
posit as  the  law  required,  and  the  contract  was  declared  to 
be  null  and  void. 

"  Upon  the  failure  of  this  contract,  proposals  were  again 
invited,  but  none  have  been  received. 

"  Some  of  the  contractors  contended,  for  a  time,  that  the 
deposit  offered  was  a  good  one,  and  that  they  were  entitled 
to  the  contract.  But  assurances  have  been  received  from 
those  contractors,  who  are  citizens  of  Texas,  which  in- 
cludes all  of  them  but  two,  that  the  company  has  never 
been  organized,  and  that  they  consider  the  contract  for- 
feited, so  that  the  whole  subject  is  still  within  the  control 
of  the  State. 

"  It  is  a  matter  for  your  consideration  whether  this  law 
shall  be  continued  in  force. 

"  The  great  advantages  that  would  accrue  to  Texas  from 
this  road,  makes  it  a  subject  of  deep  interest  to  all  classes 
of  our  citizens,  and  should  induce  all  to  favor  the  measure 
if  a  reasonable  ^hope  is  entertained  that  it  will  be  con- 
structed under  the  lavv. 

"  As  a  part  of  a  great  national  highway  from  the  Missis- 
sippi River  to  the  Pacific  Ocean,  it  is  probable  that  the 
liberal  grant  of  land  offered  by  this  law,  would  secure  its 
construction,  provided  similar  inducements  were  offered 
for  the  construction  of  a  road  from  the  Mississippi  River 
to  its  point  of  commencement,  and  also  for  its  continuation 
from  El  Paso  to  the  Pacific  Ocean.  But  as  a  mere  local 
road  from  the  eastern  line  of  the  State  to  El  Paso  it  would 
not  prove  to  be  a  profitable  work,  during  the  present 
generation. 

"  As  far  west  as  the  Colorado  River  this  road  would  pass 
through  a  region  that  would,  in  a  few  years  furnish  suffi- 
cient transportation  and  travel  to  make  it  a  paying  road, 
but    until    a    road    shall  have    been  constructed    from   the 


244  BENCH  AND  BAR  OF  TEXAS. 

Mississippi  River  to  its  point  of  commencement,  the  un- 
certaintj'  and  expense  that  would  attend  the  transportation 
of  the  iron  and  other  materials  to  its  point  of  commence- 
ment would  be  so  great  as  to  deter  any  company  from 
undertaking  even  this  part  of  it. 

"It  is  possible  that  a  company  mny  be  found  who  will 
undertake  the  construction  of  this  portion,  provided  they 
are  allowed  to  construct  a  road  upon  the  same  terms  from 
the  head  of  permanent  navigation  on  the  watiers  of  some 
of  our  bays,  up  to  the  line  upon  which  it  is  proposed  that 
the  Pacific  road  shall  run,  and  then  east  to  the  eastern  line 
of  the  State,  and  west  to  the  Colorado  River. 

'*  This  change  would  make  an  immense  saving  in  the 
cost  for  the  transportation  of  materials,  for  they  could  be 
brought  to  the  point  of  commencement  with  the  same  facil- 
ity that  they  could  be  carried  to  the  Mississippi  River,  and 
from  thence  they  could  be  transported  over  the  road  as  it 
progresses,  at  an  inconsiderable  cost. 

"  It  will  be  found,  however,  that  it  can  not  be  con- 
structed at  the  rate  of  one  hundred  miles  for  each  year ;  few  if 
any  roads  in  the  United  States  have  been  constructed  at  the 
rate  of  fifty  miles  a  year,  and  it  will  severely  tax  the  energies 
of  any  company,  whatever  may  be  its  resources,  to  construct 
a  road  at  that  rate. 

"These  reflections  will  suggest  themselves  to  every  one 
who  takes  a  practical  view  of  the  subject,  and  should  be 
considered  by  you  in  determining  your  action  in  regard 
to  it. 

"The  present  is  a  favorable  time  to  revise  our  legisla- 
tion in  regard  to  railroads  generally. 

"  "We  have  chartered  thirty-seven  railroad  companies,  and 
have  held  out  greater  inducements  for  their  construction 
than  were  ever  before  offered  by  any  government. 

"  It  is  now  nearly  four  years  since  a  bonus  of  eight  sec- 
tions of  land  was  offered  for  each  mile  of  railroad  con- 
structed, and  nearly  two  years  since  the  bonus  was  increased 
to  sixteen  sections  a  mile  for  each  twenty-five  miles. 

"  The  result  of  these  efforts  has  been,  that  we  have  one 
road  of  about  thirty  miles  in  operation,  from  Harrisburg  on 


ELISHA    MARSHALL    PEASE.  245 

Buflalo  Bayou  to  the  neighborhood  of  Richmond  on  the 
Brazos  Eiver,  and  two  others,  "  The  Galveston  and  Red 
River  Railway,"  and  "  The  Galveston,  Houston  and  Hender- 
son Railroad,"  in  the  course  of  construction,  with  a  reason- 
able prospect,  as  I  am  informed,  of  completing  twenty-five 
miles  each  by  the  30th  of  January  next,  in  time  to  avail 
themselves  of  the   bonus  of  sixteen  sections. 

"  So  far  as  I  have  been  able  to  learn,  no  other  company 
is  now  doing  any  work  under  its  charter. 

"  I  do  not  think  it  advisable  to  renew  any  of  the  charters 
heretofore  granted,  or  to  give  relief  to  any  company  oro-an- 
ized  under  them,  unless  such  company  is  now  actually  at 
work  upon  its  road,  and  can  show  that  it  has  expended  a 
considerable  amount  of  money  thereon,  and  has  the  ability 
within  a  very  short  period,  to  complete  the  number  of  miles 
necessary  to  entitle  it  to  land  under  the  laws  now  in  force. 

*'  No  new  charter  should  be  granted  over  a  route  where 
a  road  is  already  being  constructed,  or  so  near  such  route 
as  materially  to  impair  its  value. 

"  Every  railroad  company  should  be  required  to  hold  all 
meetings,  for  the  election  of  its  officers,  within  the  State, 
and  to  have  a  majority  of  its  directors  resident  citizens 
thereof,  and  also  to  keep  its  principal  office  for  the  manage- 
ment of  its  affairs  within  the  State. 

"  By  adhering  to  these  rules  we  shall  correct  many  of  the 
errors  that  have  attended  our  past  legislation  on  the  sub- 
ject. 

"I  am  unwilling  that  any  new  charters  shall  be  granted 
to  imdividuals  for  their  own  benefit.  If  new  charters  are 
necessary,  let  such  routes  be  selected  as  the  wants  and  busi- 
ness of  the  country  require  ;  designate  their  points  of  com- 
mencement and  termination,  and  grant  charters  to 
commissioners  who  should  be  required  to  open  books  for  the 
subscription  of  stock,  after  giving  public  notice.  No  sub- 
scription should  be  received  unless  five  per  cent  thereof  is 
paid  at  the  time  of  subscribing,  and  whenever  the  percentage 
on  the  capital  stock  subscribed  shall  amount  to  one  hundred 
thousand  dollars,  let  the  commissioners  be  authorized  to  call 
a  meetinor  of  the  subscribers  and  hold  an  election  for  officers: 


246  BENCH  AND  BAR  OF  TEXAS. 

after  which  the  subscribers  should  become  a  corporation 
with  all  such  powers  as  are  set  forth  in  the  charter.  The 
commissioners  should  have  no  right  under  the  charter,  ex- 
cept as  trustees,  for  the  benefit  of  the  subscribers  when 
they  organize  and  become  a  corporation,  and  should  be 
liable  to  a  heavy  penalty  for  receiving  subscriptions  of  stock 
without  the  payment  of  five  per  cent  thereof  in  cash.  The 
corporation  thus  organized  should  have  authority  from  time 
to  time  to  receive  further  subscriptions  to  its  capital  stock, 
to  the  full  amount  thereof,  after  giving  public  notice,  the 
subscribers  in  all  cases  paying  five  per  cent  of  their  stock 
at  the  time  of  subscribing. 

'*  If  we  pursue  this  course,  our  railroad  charters  will 
cease  to  be  offered  for  sale  by  individuals  who  have  obtained 
them  for  purposes  of  speculation.  Those  who  wish  to 
construct  railroads  will  obtain  charters  without  paying  a 
premium  to  the  persons  who  have  induced  the  Legislature 
to  pass  them,  and  we  shall  have  no  more  companies  organ- 
ized without  capital  to  impose  on  the  credulous  and  unwary, 
and  stand  in  the  way  of  those  who  have  the  disposition  and 
means  to  construct  railroads. 

"  While  so  little  has  been  accomplished  under  the  policy 
heretofore  pursued  by  the  State  for  the  encouragement  of 
railroads,  it  becomes  us  to  consider  well  what  we  may 
reasonably  expect  to  be  done  hereafter  by  a  continuance  of 
this  policy. 

"  The  Buffalo  Bayou,  Brazos  and  Colorado  Eailroad 
Company  will  undoubtedly  complete  its  road  as  far  as  Rich- 
mond during  the  present  year.  The  Galveston  and  Red 
River  Railway  Company,  and  the  Galveston,  Houston  and 
Henderson  Railroad  Company  expect  to  complete  twenty-five 
miles  of  their  respective  roads  by  the  30th  of  January^ 
1856,  so  as  to  secure  the  bonus  of  sixteen  sections  to  the 
mile. 

"  These  companies  will  then  have  to  continue  their  roads 
at  the  rate  of  twenty-five  miles  a  year  or  lose  the  benefit  of 
the  bonus  of  sixteen  sections.  If  they  fail  to  do  this,  the 
Harrisburg  company  and  the  Henderson  company  may  still 
have  the  benefit  of  the  bonus  of  eight    sections,   but    the 


ELISHA  MARSHALL  PEASE.  247 

latter  to  secure  even  this,  will  have  to  construct  an  addi- 
tional fifteen  miles  on  or  before  the  1st  of  March,  1857,  to 
save  its  charter. 

"The  Houston  company  has  already  lost  the  benefit  of 
the  bonus  of  eight  sections  by  failing  to  complete  ten  miles 
of  its  road  within  the  time  prescribed  by  its  charter. 

"It  is  possible  that  some  of  the  other  companies  may 
be  able  to  avail  themselves  of  the  sixteen  section  bonus,  as 
only  those  which  terminate  on  the  Gulf  coast,  the  bays 
thereof,  or  on  Buffalo  Bayou,  are  subject  to  the  provision 
which  requires  the  construction  of  twenty-five  miles  on  or 
before  the  30th  day  of  January,  1856,  though  it  is  believed 
that  few,  if  anv  of  them,  will  ever  build  road  enough  to 
save  their  charters. 

"It  is  not  generally  supposed  that  either  of  the  three 
companies  before  named  will  be  able  to  construct  their 
roads  at  the  rate  of  twentv-five  miles  a  year  after  the  30th 
of  January  next,  so  as  to  secure  the  sixteen  section  bonus, 
unless  they  are  assisted  by  a  liberal  loan  of  money  from 
the  State.  We  can  not,  therefore,  expect  that  much  prog- 
ress will  be  made  for  many  years  to  come  in  the  construction 
of  railroads  in  this  State  by  private  corporations,  beyond 
the  completion  of  those  tracks  already  graded,  unless  such 
a  loan  shall  be  authorized,  or  that  provision  of  the  act 
donating  lands  to  railroads,  which  requires  these  companies 
to  construct  twenty-five  miles  a  year,  is  repealed,  for  it  is 
generally  conceded  that  they  will  not,  at  present,  yield  a 
sufl5cient  profit  to  induce  individuals  to  invest  capital  in 
them,  without  the  advantages  to  be  derived  from  the  land 
bonus. 

"  The  passage  of  a  law,  similar  to  that  attempted  at  your 
last  session,  authorizing  the  loan  of  eight  thousand  dollars 
a  mile,  might  enable  these  three  companies,  if  they  were  to 
have  the  sole  benefit  of  it,  to  extend  their  roads  about 
seventy-five  miles  in  the  next  three  years  ;  this,  it  is  true, 
would  afford  great  relief  to  those  sections  of  the  State 
accessible  to  them,  but  it  would  be  those  sections  that  are  least 
in  need  of  railroad  facilities,  for  they  are  already  nearest  to  a 
market,  and  would  leave  the  greater  part  of  the  State,  which 


248  BENCH  AND  BAR  OF  TEXAS. 

is  now  suffering  for  want  of  such  facilities,  in  the  same 
destitute  situation  it  now  is,  without  any  certain  prospect 
of  being  supplied. 

"  What  our  citizens  need  is  a  general  system  of  internal 
improvements  by  railroads,  river  improvement  and  canals, 
that  will  extend  its  benefits  to  every  section  of  the  State  as 
near  as  practicable,  and  give  them  a  cheap  transportation  of 
their  productions  to  a  market." 

In  1872,  Attorney-General  Alexander  gave  to  A.  Bledsoe, 
the  Controller,  his  opinion  that  the  act  to  incorporate  the 
International  Railroad  Company  and  to  provide  for  the  aid 
of  the  State  in  its  construction,  was  a  special  or  private 
act,  and  that  the  Secretary  of  State  viewing  it  in  this  light 
had  caused  it  to  be  printed  in  the  volume  of  special  laws, 
and  that,  therefore,  the  State  Treasurer  could  not  lawfully 
sign  the  bonds  which  the  Legislature  had  authorized  to  be 
issued  in  favor  of  the  railroad  company. 

At  the  request  of  Mr.  Honey,  the  State  Treasurer,  and 
the  railroad  authorities,  Gov.  Pease  expressed  his  written 
opinion  in  regard  to  the  matter;  which  he  rendered  in  a 
letter  to  the  Treasurer  in  April,  1872.  In  this  opinion 
he  took  the  grounds  that  the  character  of  an  act  of  the 
Legislature  must  be  determined  by  the  general  principles 
of  the  law  which  define  what  are  public  and  what  are  pri- 
vate statutes  ;  that  this  can  not  sometimes  be  easily  deter- 
mined, from  the  fact  that  statutes  often  relate  to  matters 
which  partake  of  both  a  public  and  private  character. 
The  definition  rendered  by  the  most  precise  writers  is  that 
public  statutes  relate  to  the  State,  or  to  the  people  in  their 
corporate  capacity,  and  private  statutes  concern  only  the 
interest  or  benefit  of  certain  individuals  or  particular 
classes  of  men. 

Statutes  are  generally  intended  to  be  public,  and  a  pri- 
vate statute  is  an  exception  to  the  rule.  According  to  these 
principles  the  act  in  question  should  be  considered  a  public 
statute.  This  is  Indicated  both  by  its  title  and  purpose, 
which  relate  both  to  the  State  and  the  people  at  large.  The 
act  grants  bonds  of  the  State  to  the  railroad  company  and 
requires  that  they  shall  be   signed   by  the    Governor  and 


ELISRA    MARSHALL    PEASE.  249 

Treasurer,  and  countersigned  and  registered  by  the  Con- 
troller, and  to  be  then  delivered  by  the  Governor  to  the 
proper  officer  of  the  company,  whenever  it  should  be 
proven,  as  provided  by  the  act,  that  the  company  had  com- 
plied with  certain  conditions.  That  the  Controller  should 
then  cause  a  tax  to  be  assessed  upon  all  taxable  property 
in  the  State,  and  upon  all  occupations,  proportioned  to  the 
taxes  levied  hy  general  law  for  a  sum  sufficient  to  pay  the 
interest  on  the  bonds. 

Gov.  Pease  contended  that  these  explicit  provisions  clearly 
created  a  debt  against  the  State,  and  provided  for  its  pay- 
ment by  taxation  in  the  manner  provided  by  the  Constitu- 
tion ;  that  it  is  the  presumption  of  law  that  all  statutes 
enacted  by  the  Legislature  are  constitutional,  and  that, 
therefore,  it  is  the  duty  of  the  officers  of  the  State  to  carry 
their  provisions  into  effect  until  they  are  declared  uncon- 
stitutional by  a  competent  judicial  tribunal,  unless  they  are 
enjoined  from  doing  so  by  competent  authority.  Other- 
wise, if  any  officer  of  the  State  could  refuse  to  carry  out 
the  provisions  of  the  law  which  did  not  conform  to  his 
ideas  of  the  Constitution  the  worst  confusion  and  anarchy 
would  be  the  result. 

That  writers  on  constitutional  law  in  commenting  on  pro- 
visions, similar  to  that  in  the  Texas  Constitution,  which  de- 
clares that  "  every  law  enacted  by  the  Legislature  shall 
embrace  but  one  object,  and  that  shall  be  expressed  in  its 
title,"  assert  that  this  clause  is  not  designed  to  embarrass 
legislation  by  multiplying  the  number  of  bills,  but  is  in- 
tended to  put  an  end  to  vicious  legislation  and  to  require 
that  in  every  case  the  proposed  measure  shall  stand  upon 
its  own  merits. 

The  Supreme  Court  of  Texas  (20  Texas  Eep.  782)  has 
held  that  this  section  doubtless  was  to  prevent  embracing  in 
an  act,  having  one  ostensible  object,  provisions  having  no 
relevancy  to  that  object,  but  really  designed  to  effectuate 
other  and  wholly  different  objects,  and  thus  to  conceal  and 
disguise  the  real  object  proposed  by  the  provisions  of  an 
act  under  a  false  and  deceptive  title. 


250  BENCH  AND  BAR  OF  TEXAS. 

That  the  object  of  the  act  in  question  was  clearly  ex- 
pressed in  its  title  and  the  purpose  for  which  the  aid  was 
given  was  also  clearly  defined,  and  there  was  no  good  rea- 
son to  suppose  that  a  court  would  ever  decide  the  act  to  be 
unconstitutional . 

That,  however,  much  an  officer  of  the  State  may  be  op- 
posed to  the  provisions  of  an  act  or  its  policy,  he  is  not 
thus  justified  in  refusing  to  carry  it  into  execution. 

This  hesitancy  on  the  part  of  the  Controller  to  sign 
these  bonds  gave  rise  to  the  mandamus  case  of  Bledsoe, 
Controller,  v.  The  International  Railroad  Company,  re- 
ported in  40  Texas,  in  which  the  court  held  that  a  writ  of 
mandamus  did  not  lie  against  an  executive  officer  of  the 
State  government;  but  this  opinion  was  overruled  by  Chief 
Justice  Moore  in  Kuechler  v.  Wright,  decided  at  the  same 
term. 


JAMES    W.  DALLAM.  251 


James  W.  Dallam. 


James  Wilmer  Dallam  was  born  in  the  city  of  Baltimore, 
Maryland,  on  the  24th  of  September,  1818.  His  father, 
Francis  J.  Dallam,  a  highly  respected  citizen  of  that  city, 
was  for  many  years  cashier  of  the  Baltimore  Bank.  His 
mother  was  a  Miss  Wilmer,  the  daughter  of  an  Episcopal 
clergyman.  James  Wilmer,  the  eldest  son,  while  a  boy, 
remained  at  home  under  the  supervision  of  his  parents,  and 
went  through  the  regular  course  of  what  is  usually  denom- 
inated a  home  education. 

His  father  wishing  to  give  him  the  advantage  of  a  college 
course,  sent  him  to  Brown  University,  at  Providence, 
Rhode  Island.  After  finishing  his  university  course  he 
returned  to  Baltimore,  and  studied  law  under  that  able  and 
distinguished  lawyer  and  advocate,  Hon.  Reverdy  Johnson, 
who  was  afterwards  Attorney-General  of  the  United  States. 

Mr.  Dallam  was  but  little  more  than  twenty-one  yeavs  of 
age  when  he  obtained  license  to  practice  his  profession. 
Being  unwilling  to  wait  the  usual  period  for  a  young  lawj^er 
to  obtain  a  practice  in  Baltimore,  where  the  bar  was  literally 
crowded  by  so  many  able  and  established  lawyers,  young 
Dallam  determined  to  emigrate  to  Texas  to  seek  his  fortune, 
and  chose  the  little  town  of  Matagorda  as  his  future  home. 
Here  he  remained  attending  to  the  business  of  his  profession 
for  four  years. 

Finding  that  there  was  but  little  litigation  in  the  courts 
at  that  early  period,  he  passed  the  winter  of  1844  in  the 
small  town  of  Washington,  then  the  temporary  capital  of 
the  Republic,  and  while  there  employed  himself  in  compilinir 
the  book,  which  he  soon  after  published  under  the  title  of 
"  Dallam's  Digest." 

In  the  spring  of  1845  Mr.  Dallam  went  back  to  Baltimore, 


252  BENCH  AND  BAR  OF  TEXAS. 

and,  with  the  assistance  of  his  father,  succeeded  in  pub- 
lishing his  book.  This  work  was  prepared  by  Mr.  Dallam 
under  great  disadvantages.  But  few  briefs  had  been  filed 
by  the  attorneys  in  the  cases  which  had  been  decided  by  the 
Supreme  Court  of  Texas,  and  the  consequence  was  that  the 
digest  was  necessarily  imperfect.  However,  to  Mr.  Dallam 
must  be  attributed  the  merit  of  being  the  only  lawyer 
in  the  Republic  who  conceived  the  idea  of  the  enterprise. 

When  the  book  appeared  it  contained,  among  other 
things,  the  decisions  of  the  Supreme  Court  made  during 
the  five  preceding  years,  which  had  not  before  been  pub- 
lished. It  was  eagerly  purchased  by  the  lawyers  of  the 
Eepublic,  and  was  soon  regarded  by  them  as  almost  indis- 
pensable in  the  practice  of  their  profession. 

In  the  fall  of  1845,  Mr.  Dallam  returned  to  Matagorda, 
and  on  the  first  day  of  October  of  that  year  was  married  to 
Miss  Annie  P.  Fisher,  the  daughter  of  Hon.  S.  Rhoads 
Fisher,  who  was  one  of  the  early  settlers  of  Texas,  was  a 
strong  advocate  for  separation  from  Mexico,  and  was  after- 
ward Secretary  of  the  Navy  of  the  Republic  of  Texas. 

As  there  was  little  to  be  done  in  the  practice  of  his 
profession,  Mr.  Dallam,  soon  after  his  marriage,  edited  a 
newspaper  in  the  town  of  Matagorda. 

In  the  3'^ear  1847  he  was  engaged  by  some  influential 
parties  in  Indianola,  Texas,  to  edit  a  newspaper  in  that 
place  in  both  German  and  English.  In  the  early  part  of 
the  month  of  August  of  that  year  (1847)  he  went  to  New 
Orleans  to  make  necessary  business  arrangements  for 
establishing  and  conducting  his  paper.  At  the  time  of 
making  this  visit,  he  was  entirely  unaAvare  that  yellow 
fever  had  already  made  its  appearance  in  that  city.  Within 
less  than  a  week  from  the  time  of  his  arrival  there,  he  was 
attacked  by  the  prevailing  epidemic,  which  in  his  case 
terminated  fatally  in  three  days. 

Thus  ended  the  life  of  one  whose  youth  gave  promise  of 
future  usefulness. 

Mr.  Dallam's  death  occurred  on  the  20th  of  August, 
1847,  when  he  was  not  quite  twenty-nine  years  of  age.  He 
had  been   married  only  two  years,  and   left  but  one    child. 


JAMES    W.   DALLAM.  253 

<in  infant  daughter,  Annie  Wilmer  Dallam,  who  is  now  the 
wife  of  Branch  T.  Masterson,  Esq.,  a  much  esteemed  and 
prominent  lawyer  of  Galveston,  Texas. 

Mr.  Dallam  was  a  gentleman  of  varied  and  extensive 
reading,  of  much  information  and  of  fine  literary  taste. 
He  was  possessed,  too,  of  untiring  industry  and  persever- 
ance, and  having  studied  under  the  tuition  of  that  great 
lawyer,  Hon.  Reverdy  Johnson,  he  was  well  versed  in  the 
principles  of  his  profession. 

Possessing  in  a  high  degree  the  qualities  of  wit  and 
humor,  he  was  the  life  of  the  social  circle  in  which  he 
moved ;  and,  being  of  a  particularly  kind  and  genial 
disposition  he  had  many  friends,  and  his  early  and  untimely 
death  was  much  regretted  by  all  who  knew  him. 


254  BENCH  AND  BAR  OF  TKXAS. 


WILLIAMSON    S.    OLDHAM. 


The  subject  of  this  sketch  was  born  in  Franklin  County, 
Tennessee,  on  the  19th  of  June,  1813,  and  was  a  descendant 
of  an  old  Virginia  family,  which  emigrated  from  England 
and  settled  in  that  State  during  its  colonial  period.  His 
father  was  an  honest  farmer  of  slender  means,  and,  having 
a  large  family  of  children,  was  unable  to  give  his  sons  even 
the  advantages  afforded  by  the  common  schools  of  the 
neighborhood.  But  diirino;  the  intermissions  of  his  duties 
and  labors  of  the  farm,  and  at  night,  young  Oldham  ap- 
plied himself  to  the  task  of  obtaining  an  education  by  his 
own  exertions.  He  felt  the  inspirations  of  genius  and  am- 
bition, and  made  such  progress  in  his  course  of  self- 
instruction  that  at  the  age  of  eighteen  years  he  opened  a 
school  in  the  mountains  of  Tennessee,  in  order  to  procure 
means  to  continue  his  education  and  prepare  himself  for  the 
bar.  Having  followed  this  calling  two  years,  during  which 
he  availed  himself  of  every  leisure  moment  for  his  own 
advancement,  he  obtained  a  situation  in  the  office  of  the 
district  clerk  of  Franklin  County.  While  serving  in  this 
capacity,  his  energy,  sprightliness  and  aspirations  attracted 
the  attention  of  Judge  Nathan  Green,  afterwards  Chief 
Justice  of  Tennessee,  who  kindly  directed  his  study  of  the 
law.  He  brouo-ht  to  the  bar  the  eager  determination  and 
assiduity  which  had  characterized  his  youthful  exertions, 
and  so  apt  was  his  comprehension  of  legal  principles  and  so 
ardent  his  ambition,  that  Judge  Green,  on  signing  his 
license,  predicted  for  him  a  bright  career  in  his  chosen  pro- 
fession. 

In  1836  he  removed  to  Fayetteville,  Arkansas,  where  he 
formed  a  copartnership  with  S.  G.  Sneed,  who  was  after- 
wards a  prominent  lawyer  of  Austin,  Texas.     At  Fayette- 


WILLIAMSON    S.  OLDHAM.  255 

ville  Mr.  Oldham  soon  established  an  eminent  reputation, 
and  in  1842  was  speaker  of  the  Arl^ansas  House  of  Repre- 
sentatives. His  profound  knowledge  of  law,  his  talents 
and  application,  his  great  success  at  the  bar,  and  his  personal  , 
.popularity,  placed  him  in  the  line  of  the  highest  judicial 
distinction,  and  in  1844  he  was  chosen  almost  unanimously 
by  the  Legislature  an  associate  justice  of  the  Supreme  Court 
of  Arkansas,  and  held  that  position  until  the  fall  of  1848, 
when,  in  consequence  of  ill  health,  he  resigned,  in  contem- 
plation of  making  his  future  home  in  Texas.  His  decisions 
settled  many  important  questions  in  the  jurisprudence  of 
Arkansas,  and  are  noted  for  their  logical  clearness,  legal 
erudition,  and  for  their  wise  application  and  development  of 
legal  principles.  They  are  contained  in  the  first  three  vol- 
umes of  English's  Arkansas  Reports. 

In  the  spring  of  1849  he  removed  to  Texas  and  located 
at  Austin,  where  he  resumed  the  practice  of  law  in  copart- 
nership with  James  Webb,  and  took  his  place  among  the 
most  eminent  lawyers  of  the  Texas  bar.  He  was  after- 
wards associated  with  William  Murphy,  a  distinguished 
criminal  lawyer  of  Alabama,  who  resided  a  short  time  in 
Austin,  and  subsequently  with  John  F.  Marshall  and  A.  W. 
Terrill,  also  with  George  W.  White,  now  of  Nashville, 
Tennessee,  and  lastly  with  B.  H.  Davis,  now  of  El  Paso, 
Texas.  While  he  was  in  copartnership  with  George  W. 
White,  in  1858,  the  Legislature  of  Texas  passed  an  act  au- 
thorizing the  Governor  to  receive  proposals  for  the  prepa- 
ration of  a  digest  of  all  the  general  statute  laws  of  the 
State,  and  all  the  repealed  laws  of  the  Republic  and  State, 
through  or  under  which  any  rights  had  accrued;  also  the 
colonization  laws  of  Mexico,  and  of  the  State  of  Coahuila 
and  Texas,  in  force  at  the  declaration  of  Texas  independ- 
ence, and  appropriated  twenty  thousand  dollars  for  the  pur- 
chase of  five  thousand  copies  of  the  work  for  the  use  of  the 
State.  The  contract  for  preparing  this  digest  was  awarded 
to  Messrs.  Oldham  and  White,  and  the  work  prepared  by 
them  will  always  hold  a  prominent  place  in  the  jurispru- 
dence of  the  State. 

In  1861  Judge  Oldham  was  strongly  in  favor  of  secession 


256  BENCH  AND  BAR  OF  TEXAS. 

as  the  proper  and  only  practical  remedy  for  allaying  the 
fears  and  dangers  which  the  people  of  the  South  generally 
entertained  and  apprehended  for  their  institutions  under 
the  hostile  polic}^  and  administration  of  the  Federal  gov- 
ernment, and  was  an  active  member  of  the  convention  of 
that  year,  which  severed  the  connection  of  Texas  with  the 
Union.  He  was  chosen  a  member  of  the  Provisional  Con- 
gress at  Montgomery,  and  was  subsequently  elected  a  Senator 
in  the  Congress  of  the  Confederate  States  and  held  that 
position  until  the  close  of  the  war. 

Throughout  all  the  vicissitudes  of  the  civil  strife  Judge 
Oldham  was  faithful  and  true  to  the  cause  which  he  had 
espoused  with  the  pledge  of  his  life,  honor,  liberty  and 
property  in  its  support.  He  never  faltered  in  the  advocacy 
of  his  principles,  and  repelled  every  sentiment  of  despair 
as  to  the  result  of  the  issue.  During  the  last  session  of  the 
Confederate  Congress  he  was  appointed  one  of  a  committee 
of  three  Senators  to  ascertain  the  remaining  resources  of 
the  South  and  its  chances  for  final  success,  compared  with 
the  power  of  the  enemy  for  subjugation.  He  concurred 
fully  in  the  views  presented  in  the  report  of  Senator  Hill, 
of  Georgia,  that  with  a  proper  marshaling  of  its  strength, 
an  economical  management  of  its  resources,  and  with  proper 
military  skill  and  efficiency,  the  South  could  continue  the 
war  indefinitely,  and  until  the  North  grew  weary  of  the 
struggle. 

In  November,  1864,  the  Legislature  of  Texas  passed  a 
series  of  resolutions  concerning  "peace,  reconstruction  and 
independence,"  in  which  it  was  declared  that  the  State  of 
Texas  would  accept  no  offer  of  peace  on  any  terms  which 
did  not  come  through  the  agency  of  the  Confederate  gov- 
ernment; that  the  Southern  States  did  not  secede  from  the 
Union  upon  any  question  such  as  the  mere  preservation  of 
the  slave  property  of  its  citizens,  but  that,  being  free  and 
sovereign  States,  they  were  resolved  to  preserve  their  free- 
dom and  their  sovereignty  ;  that  even  if  the  horrors  of  war 
could  be  obliterated,  the  experience  of  Texas  as  a  member 
of  the  Union,  in  which  she  had  seen  every  feature  of  the  con- 
stitutional compact  violated,  warned  her  against  any  reunion 


WILLIAMSON    S.  OLDHAM.  257 

with  the  p.eople  of  the  North  ;  that  while  Texas  earnestly 
desired  peace,  it  must  be  coupled  with  the  iadependence  of 
the  South,  and  that  it  would  regard  any  overture  of  the 
Federal  government  made  to  an  individual  State,  looking 
to  its  return  to  the  Union,  as  an  insidious  policy  to  divide 
and  conquer." 

Judge  Oldham  introduced  these  resolutions  in  the  Con- 
federate Senate,  in  January,  1865,  and,  after  discussing 
theii'  merits  and  bearing,  said  :  — 

"Mr.  President,  we  must  avoid  these  consequences  — 
we  must  keep  our  people  united  in  their  determination  to 
be  free.  We  must  do  nothing,  by  act  or  omission,  that 
Avill  divide  them,  or  that  will  weaken  their  resolution  never 
to  submit  to  their  enemies.  I  know  of  no  better  mode  of 
accomplishing  this  than  by  keeping  constantly  and  promi- 
nently before  their  minds  the  issue  so  clearly  made  up  be- 
tween us  and  our  enemies.  If  ever  a  people  upon  earth 
had  evidence  to  convince  them  of  a  fact,  we  have  the  evi- 
dence to  convince  us,  beyond  all  doubt,  that  the  government 
of  the  United  States  will  not  treat  with  us  except  upon  the 
basis  of  submission,  or  reunion,  which  amounts  to  the  same 
thing.  Never  was  an  issue  more  clearly  or  distinctly  made 
up.  We  fight  for  independence;  they  fight  for  subjuga- 
tion. 

"  They  have  shown  no  signs  of  yielding, —  we  can  not 
yield  ;  to  do  so  is  certain  destruction.  We  staked  our  all 
upon  the  issue>  and  if  we  fail,  all  is  lost.  We  must  fight 
still  longer.  We  must  fight  for  peace,  and  continue  to  fight 
as  the  only  alternative  left  us.  We  must  prove  by  our 
arms  what  we  never  can  do  by  argument  or  negotiation, 
that  our  enemy  can  not  conquer  us.  Until  we  shall  do  that, 
we  can  never  obtain  any  peace  but  that  of  subjugation. 
Then  let  us  cease  all  contention  and  drive  away  all  unmanly 
despondency,  and  go  to  work  to  arouse  the  energies  and  re- 
vive the  spirit  of  resistance  and  enthusiasm  of  the  people. 
If  unwise  counsels  have  prevailed,  we  but  weaken  ourselves 
by  quarreling  about  it  now  ;  if  errors  have  been  committed 
in  the  field,  we  can  not  repair  them  by  warring  upon  those 
who  committed  them ;  if  we  have  met  with  disaster  and 
ir 


258  BENCH  AND  BAR  OF  TEXAS. 

defeat,  we  can  not  rise  above  them  by  unmanly  discontent 
and  dispondency. 

"  Our  safety  in  thi^s  struggle  depends  upon  the  harmo- 
nious and  faithful  union  of  the  States  of  the  Confederacy. 
We  should  a^roid  everything  that  tends  in  the  slightest 
degree  to  disintegration.  I  believe  that  we  can  keep  them 
united,  and  bring  to  the  support  of  the  country  all  the 
strength  and  energy  of  the  people  only  by  adhering  to  the 
Constitution  in  letter  and  spirit,  which  all  have  agreed  to 
as  the  bond  of  union.  Discard  that  instrument,  either  in 
regard  to  the  agencies  created  by  it,  or  the  powers  conferred, 
and  you  will  open  the  floodgates  of  discord  and  anarchy, 
of  division  and  conflict. 

"  I  do  not,  in  the  slightest  degree,  call  in  question  the 
patriotism  of  those  who  favor  and  advocate  other  diplomatic 
agencies  than  those  provided  by  the  Constitution.  I  know 
that  they  sincerely  believe  that  by  such  means  we  will 
strengthen  our  cause  at  the  North,  and  so  far  promote  the 
ends  of  peace,  and  I  as  sincerely  believe  that  at  this  time 
they  will  weaken  our  cause  both  there  and  at  home,  and 
thereby  prolong  the  war  and  intensify  its  barbarism.  There 
is  but  one  mode  of  strengthening  our  cause  with  the  people 
of  the  North,  and  that  is  to  convince  those  who  are  opposed 
to  our  independence  that  we  will  never  accept  peace  without 
it.  The  greater  the  disaster,  the  darker  the  hour,  the  more 
firmly  and  stubbornly  should  we  assert  that  resolve;  the 
more  determined  and  defiant  should  be  our  tone;  the  more 
enegetically  should  we  set  to  work  to  gather  up  our  strength 
for  the  renewal  of  the  combat.  The  clear,  cheerful,  ring- 
ing tone  of  confident  defiance  that  we  are  determined  '  to 
die  freemen  rather  than  live  slaves,'  sent  out  from  the  two 
Houses  of  this  Congress  would  cheer  the  hearts  of  oui" 
people  ;  would  renew  the  courage,  revive  the  energies,  con- 
firm the  endurance  and  nerve  the  arms  of  our  brave  and 
gallant  soldier  boys  in  the  army,  who  for  nearly  four  years 
have  patriotically  endured  and  heroically  battled  for  our 
cause.  They  would  repeat  the  shout  from  rank  to  rank, 
from  regiment  to  regiment,  from  brigade  to  brigade,  from 
division  to  division,  from  corps  to  corps  and  from  army  to 


WILLIAMSON    S.  OLDHAM.  259 

army.  It  would  be  caught  up  by  the  old  gray-haired  fathers 
and  mothers  at  home,  by  our  sisters,  wives  and  daughters, 
and  even  by  the  little  children,  until-  its  echoes  would  be 
heard  from  valley  to  mountain  and  from  mountain  to 
valley,  and  would  reverberate  from  one  end  of  the  Confed- 
eracy to  the  other.  Then  indeed  would  we  strengthen  the 
peace  party  at  the  North,  by  showing  that  we  are  not  to  be 
overcome  by  disaster  nor  dismayed  hy  defeat,  or  that  we 
can  be  induced  to  abate  one  iota  of  our  just  demands  b}' 
reason  of  them  ;  and  by  convincing  our  enemies  that  we 
can  not  be  subjugated  by  them.  Thus  our  fathers  in  the 
Revolution  of  1776,  strengthened  the  peace  party  of  Great 
Britain  by  refusing  to  negotiate  while  an  invading  army 
was  upon  their  soil,  and  by  convincing  the  monarch  and  the 
minority  that  subjugation  was  impossible.  Let  not  the 
lesson  of  wisdom  taught  us  by  that  example  be  lost  to  us. 
We  may  make  up  our  minds  that  our  enemies  will  never 
grant  us  peace  with  independence,  as  long  as  they  believe 
from  any  cause  they  can  conquer  us ;  and  whenever  that 
delusion  is  dispelled,  peace  will  follow  as  naturally  as  day 
follows  the  night.  The  night  may  be  dark,  but  the  day  of 
our  deliverance  will  come  if  we  but  remain  true  to  our- 
selves. It  may  be  nearer  than  we  imagine  ;  but  whether  it 
is  or  not,  it  will  be  all  the  brighter  by  reason  of  the  dark- 
ness that  precedes  the  dawn." 

On  another  occasion  he  said:  "  I  may  be  regarded  as 
over  sanguine ;  if  it  is  so,  it  is  because  of  my  temperament, 
strengthened  by  my  habits  of  life.  From  my  earliest  years 
I  have  had  difficulties  to  encounter,  with  no  aid  to  overcome 
them  but  self-reliance  and  perseverance.  I  have,  therefore, 
been  taught  to  believe  that  a  determined  will,  enero;v  and 
perseverance  will  accomplish  anything  not  inhibited  by  the 
fiat  of  Omnipotence." 

At  the  close  of  the  war  Judge  Oldham  retired  to  Mexico 
and  engasred  in  the  task  of  writins^  an  account'  of  the 
"  Last  Days  of  the  Confederacy,"  and  as  a  means  of  sup- 
porting himself  he  learned  the  art  of  photography  from  a 
Frenchman  in  Cardova,  and  pursued  that  calling  during  the 
fourteen  months  he  resided   there.     Upon  the    fall    of  the 


260  BENCH  AND  BAR  OF  TEXAS. 

Empire  in  1866  he  went  to  Canada,  and  having  seen  in  the 
papers  the  name  of  W.  S.  Oldham,  of  Texas,  in  the  list  of 
those  pardoned,  he  started  to  his  home,  but  on  reaching  New 
York,  found  that  the  pardoned  individual  was  a  relative  who 
bore  his  name.  Upon  the  assurance  of  his  former  partner, 
Col.  G.  W.  White,  who  was  then  in  Washington,  that  he 
would  not  be  molested,  he  continued  his  homeward  Journey 
to  that  city,  where  his  friends  urged  him  to  accept  and  apply 
for  a  pardon  which  they  had  been  assured  would  be  readily 
granted,  but  thankins;  them  for  their  kind  intentions  and 
efforts,  he  declined  the  confession  of  guilt  which  a  pardon 
implied.  He  said  that  being  conscious  of  having  done  no 
wrong  he  could  not  ask  for  a  pardon  and  thus  impugn  his 
past  actions  and  his  present  convictions,  and  that  all  he 
wished  was  a  passport  to  secure  him  from  military  arrest. 
He  said  to  his  friends  who  were  interesting  themselves  in  his 
behalf:  "  Tell  President  Johnson  that  if  any  twelve  honest 
citizens  of  my  country,  possessing  the  qualifications  of 
jurors  would  try  me  for  treason,  I  feel  confident  that  I  can 
convince  them  that  I  have  done  right,  but  if  they  should 
decide  that  I  have  been  guilty  of  treason,  and  the  court 
should  pronounce  sentence  upon  me  as  a  traitor,  I  would 
then  consent  to  ask  for  and  receive  a  pardon  from  him ; 
but  without  such  a  legal  conviction  I  could  not." 

He  returned  to  Texas,  without  molestation,  and  having 
settled  in  Houston,  devoted  himself  exclusively  to  the  prac- 
tice of  his  profession.  He  look  no  part  whatever  in  public 
affairs,  but  watched  with  eager  anxiety  for  the  welfare  of 
his  people  the  arbitrary  measures  of  reconstruction.  A 
citizen  of  no  country,  he  felt  himself  an  alien  in  the  State 
he  had  served  so  faithfully  and  well,  and  in  the  prosperity 
of  which  he  had  centered  all  his  worldly  hopes.  Thus 
wearing  away  the  prime  of  his  life  and  the  meridian  of  his 
intellectual  brilliancy,  he  was  stricken  with  typhoid  fever 
and  died  with  that  disease  at  Houston  on  the  8th  day  of 
May,  1868. 

Judge  Oldham  was  a  lawyer  of  great  ability  and  a  man 
of  extensive  literary  culture.  His  distinguished  success 
was  the  just  reward  of  his  eminent  qualifications  and  noble 


WILLIAMSON    S.  OLDHAM.  261 

traits  of  character.  Starting  in  life  in  the  midst  of  insu- 
perable  difficulties,  without  the  usual  opportunity  of 
obtaining  even  the  rudiments  of  an  education,  he  relied 
upon  himself,  and  guided  by  an  unswerving  purpose  and 
sustained  by  a  determination  which  distanced  every  obstacle 
in  his  pathway,  he  climbed  with  the  sure  pace  of  destiny  to 
that  eminence  which  formed  the  goal  of  his  ambition.  His 
career  was  a  striking  commentary  upon  self-reliance  and 
perseverance  in  accomplishing  the  highest  aims  and  noblest 
purposes,  and,  as  he  said,  "  anything  not  inhibited  by 
Omnipotence." 

He  was  also  a  man  of  the  most  amiable  character,  strictly 
moral  in  his  habits,  and  a  true  Christian.  He  possessed  a 
high  sense  of  honor,  a  tender  conscience,  a  flowing  gen- 
erosity and  open-handed  charity.  He  was  a  true  patriot 
and  a  good  man. 


262  BENCH  AND  BAR  OF  TEXAS. 


H.    p.    BREWSTER. 


H«  Mv  Percy  Brewster  was  born  in  Laurens  District,  South 
Carolina,  on  the  22d  of  November,  1816.  He  descended 
from  an  old  English  family,  which  moved  from  Virginia  to 
that  State  at  an  early  period,  and  furnished  many  active  par- 
ticipants in  the  Revolutionary  struggle.  He  had  two  sisters 
and  one  brother,  all  of  whom  were  deaf  and  dumb,  and 
without  the  opportunities  of  obtaining  the  peculiar  educa- 
tion which  is  now  in  reach  of  that  class.  The  ingenuity  of 
Henry  was  early  taxed  to  contrive  some  way  of  communi- 
cating with  them,  and  without  any  knowledge  himself  of 
an}'^  known  system,  he  and  his  mother,  who  was  a  lady  of 
brilliant  intellect,  invented  a  method  by  which  they  could 
easilv  converse  with  the  mutes  so  as  not  to  be  understood 
by  any  other  person. 

At  the  age  of  twent}^  years,  while  visiting  relations  in 
Alabama,  he  heard  of  the  fall  of  the  Alamo  and  the  massa- 
cre at  Goliad,  and  being  a  magnanimous  and  sympathetic 
youth,  and  being  now  thrown  upon  his  own  resources,  he 
determined  to  unite  his  destiny  with  the  struggles  of  Texas 
for  liberty  and  independence.  Having  made  his  way  to 
New  Orleans,  he  embarked  in  a  vessel  there  and  arrived  at 
Velasco  at  the  mouth  of  the  Brazos  in  the  spring  of  1836, 
from  whence  he  proceeded  immediately  to  the  headquarters 
of  the  Texan  army,  which  he  reached  a  short  time  before 
the  battle  of  San  Jacinto,  and  enlisted  as  a  private  soldier 
in  a  volunteer  company.  His  introduction  to  Gen.  Houston 
is  said  to  have  been  merely  accidental,  and  a  freak  of  cir- 
cumstance similar  to  that  which  made  Sir  Thomas  Egerton 
Earl  of  Ellesmere  and  Lord  Chancellor  of  England.  The 
attention  of  the  general  was  casually  directed  to  his  genius 
and  appearance,  and  he  made  him  his  private  secretary.  He 


H.  P.  BKEWSTER.  263 

was  with  the  general  when  he  was  wounded  at  San  Jacinto 
and  accompanied  him  to  New  Orleans,  whither  he  repaired 
for  surgical  treatment.  In  the  month  of  August,  1836,  he 
returned  to  Texas  and  was  appointed  by  President  Burnett 
Secretary  of  War.  As  the  military  affairs  of  the  Eepublic 
were  at  this  period  comparatively  quiet,  he  found  time  dur- 
ing his  tenure  of  that  office  to  study  law,  and,  having  en- 
gaged his  fine  intellect  in  this  pursuit  with  his  habitual  vigor 
and  determination,  he  was  admitted  to  the  bar  in  1837,  and 
at  the  expiration  of  President  Burnet's  term  entered  upon 
the  practice  of  his  profession  at  Brazoria  with  every  pros- 
pect which  energy  and  talent  could  command. 

In  1840  he  was  appointed  district^attorney  of  the  Second 
Judicial  District,  but  finding  his  general  practice  to  be  more 
congenial  to  his  taste  and  independence  of  character,  as  well 
as  more  remunerative,  he  resigned  in  1843,  and  from  that 
time  declined  every  advance  of  official  allurement.  He  re- 
cognized the  Jealousy  of  his  profession,  and  appreciated 
the  adage  that  "  Lady  Common  Law  must  lie  alone  "  and 
can  not  be  wedded  with  imiDunity  to  the  wayward  abstrac- 
tions of  politics. 

He  was  a  great  friend  and  admirer  of  President  Pierce, 
and  during  the  latter  part  of  his  administration  removed  to 
Washington  City,  where  he  continued  his  practice  until  the 
clouds  of  civil  strife  gathered  in  1861.  He  remained  in 
that  city  until  his  arrest  was  threatened,  and  it  is  said  that 
it  was  in  consequence  of  a  dispatch  from  him  to  the  author- 
ities at  Montgomery  in  regard  to  the  departure  of  the  Fed- 
eral fleet  to  relieve  Sumpter,  that  the  order  was  given  to 
Gen.  Beauregard  to  open  his  guns  upon  that  fort. 

And  now  at  the  sound  of  war,  the  spirit  of  the  Texas 
Revolution  and  the  fires  of  San  Jacinto  rekindling  in  his' 
bosom,  he  entered  the  Confederate  army  and  was  made  ad- 
jutant-general and  chief  of  staff  to  Gen.  Albert  Sydney 
Johnston.  In  this  capacity  he  shared  the  short  but  brilliant 
career  of  that  officer  in  tiie  Confederate  service,  and  was  near 
him  when  he  fell  while  leading  his  victorious  columns  across 
the  field  of  Shiloh.  He  was  afterwards  employed  on  special 
duty,  chiefly  with  the  command  of  Gen.   Hood. 


264  BENCH  AND  BAR  OF  TEXAS. 

At  the  termination  of  the  war  he  returned  to  Texas  and 
resumed  the  practice  of  law  in  San  Antonio,  to  which,  as  the 
j^estor  of  the  Texas  bar,  he  devoted  his  energies  and  talents 
until  1883,  when  he  was  appointed  by  Governor  Ireland  to 
the  office  of  Commissioner  of  Insurance,  Statistics  and  His- 
tory, and  held  that  position  at  the  time  of  his  death,  which 
occurred  from  a  stroke  of  paralysis  on  the  27th  of  Novem- 
ber, 1884. 

The  fires  of  two  revolutions  had  burned  and  waned  in  his 
bosom,  and,  while  those  of  the  latter  one  were  quenched  by 
the  cold  hand  of  fate,  the  embers  of  principle  still  glowed 
in  all  his  being  and  inspired  every  sentiment  of  his  soul. 
While  the  frosts  of  seventy  winters  had  wrinkled  his  brow 
and  silvered  his  locks,  they  had  wrought  no  sear  upon  his 
heart.  Neither  the  blight  of  years  nor  the  storms  of  revo- 
lution could  shake  him  from  the  solida  mens  of  his  con- 
scientious faith  ;  and  if  the  heavens  had  burst  asunder  and 
broken  up,  the  shattered  fragments  would  have  fallen  upon 
him  standing  erect  and  still  lighting  the  torch  of  duty. 

Patriotism  was  the  guiding  star  of  his  life,  and,  through- 
out his  long  career  he  never  swerved  in  his  endeavors  to 
perform  the  obligations  which  he  conceived  to  be  due  to  his 
country  and  his  fellow-man.  If  he  w^as  in  some  respects 
eccentric,  his  idiosyncrasies  were  such  as  often  tread  the 
paths  of  the  purest  virtue.  He  knew  Texas  from  her 
cradle.  Before  the  world  had  heard  of  her,  he  knew  her. 
He  was  present  at  her  birth,  he  saw  her  baptised  into  the 
family  of  nations,  and  attended  her  when  she  gave  her 
hand  and  heart  to  the  American  Union.  He  abetted  her  in 
the  wager  of  battle  for  her  divorce.  He  saw  and  felt  the 
decision  which  the  Great  Arbiter  of  war  rendered  against 
her,  and  it  was  happy  for  him  that  he  lived  to  see  the  elec- 
tion of  a  Democratic  President  and  the  prospective  complete 
reconciliation  of  the  estrangement. 

In  the  office  of  Commissioner  of  Statistics  and  History 
he  found  a  congenial  element.  His  patriotism  found  in  its 
duties  food  for  reflection  and  inspiration.  His  memory  was 
retentive  and  vigorous,  and  at  the  time  of  his  death  he  was 
personally   cognizant   of  more   important    and    interesting 


H.   P.  BREWSTER.  265 

events  in  the  history  of  Texas  than  any  other  person  in  the 
State.  His  pride  was  enlisted  in  a  service  so  agreeable  to 
his  taste,  and  he  spared  no  pains  in  his  efforts  to  gather  and 
preserve  the  incidents  and  details  of  events  in  which  he 
was  oftentimes  a  prominent  actor. 

Colonel  Brewster,  though  reserved  in  disposition,  was  a 
warm  and  constant  friend  and  a  devoted  husband  and 
father.  He  kept  one  of  his  daughters,  a  young  lady  of 
rare  accomplishments,  in  his  office  with  him,  and  was  happy 
alike  in  having  her  companionship  and  her  efficient  services. 

Amid  the  varied  opportunities  which  his  talents  com- 
manded he  manifested  no  desire  for  the  accumulation  of 
wealth.  He  lived  upon  a  higher  plain  than  that  which  is 
devoted  to  the  struggle  for  gain,  and,  while  he  was,  as 
General  Johnston  characterized  him,  "a  natural  born  aris- 
tocrat," and  possessed  every  quality  required  for  command- 
ing positions,  he  had  no  thirst  for  distinction,  and  no 
ambition  for  notoriety  ;  and,  unless  yielding  to  the  demands 
of  kindness  and  courtesy,  he  was  reticent  in  regard  to 
matters  illustrating  his  varied  experience  and  eventful  life. 
He  said  that  he  desired  no  monumental  stone,  no  epitaph, 
not  even  a  grave  mound,  to  mark  his  last  resting  place. 
He  cherished  the  desire  to  be  buried  at  sea,  and  on  the 
evening  before  the  battle  of  Shiloh,  while  resting  under  a 
tree  and  discussing  with  other  officers  the  mightv  struo-crle 
which  he  knew  the  morning  would  bring,  he  remarked  to 
Colonel  Thomas  M.  Jack,  of  General  Johnston's  staff,  that 
he  had  no  fears  of  death,  as  he  was  too  far  from  the  sea, 
but  requested  him,  if  he  should  be  killed,  to  have  him  buried 
in  the  Gulf  of  Mexico.  This  desire  he  repeated  to  his 
daughter  not  long  before  his  death,  and  she  faithfully  and 
nobly  complied  with  his  request.  She  carried  his  body  to 
Galveston,  where  it  was  placed  on  board  the  little  State 
steamer,  Hygeia,  which  the  Governor  had  kindly  placed  at 
her  disposal,  and  was  borne  to  a  spot  in  the  deep  waters  of 
the  Gulf  where  the  ill-fated  City  of  Waco  went  down  a  few 
years  since,  and  was  there  committed  to  the  sea. 

The  author  can  not  by  any  means  subscribe  to  that  mate- 
rialistic doctrine  which  would  consisrn  2:enius  and  intellectual 


266  feENCH    AND    BAR    OF    TEXAS. 

culture  to  the  narrow  sphere  of  an  earthly  existence,  and 
which  would  send  us  from  this  world  disrobed  of  all  intel- 
lectual graces,  with  no  conception  but  that  of  accountability, 
and  with  no  endowment  but  that  of  an  embryo  capacity  for 
an  existence  certified  only  by  the  dim  scroll  of  religious 
faith  or  the  blank  sheet  of  infidelity.  There  is  with  every 
one,  notwithstanding  the  dogmas  of  casuists,  an  inward 
revelation  that  the  acquirements  and  treasures  of  the  mind 
are  immortal,  and,  as  the  Greeks  expressed  it,  r»  ai,'/jiv 
■/.rrjiia  —  "the  posscssiou  forevcr;"  and  when  we  are  told 
that  "  ano-els  desire  to  look  into  these  thing-s,"  we  are 
reminded  that  the  cravings  of  the  intellect  are  manifested 
even  around  the  very  throne  of  Heaven,  and  that  it  there 
continues  to  weave  the  golden  threads  of  thought,  gather 
its  ambrosial  food  and  rise  higher  and  higher,  until  it  is 
merged  in  the  zenith  of  illimitable  light. 

Col.  Brewster  was  fond  of  the  pure  elements  of  nature, 
and  sought  to  attain  in  death  that  perfect  freedom  from  its 
alloys  and  dross  which  he  had  striven  for  in  life.  But 
while,  as  if  to  escape  the  ruins  of  man,  he  sought  a  burial 
beneath  the  waves  which  in  his  youth  had  borne  him  to  the 
Texan  shores,  those  shores  will  ever  preserve  his  memory 
and  proclaim  his  virtues.  No  darksome  caves  of  the  deep, 
nor  emboweled  caverns  of  the  earth,  nor  crypts  of  time 
can  sepulchre  these.  They  rest  in  the  golden  urn  into  which 
Texas  will  always  gather  the  scattered  ashes  of  her  great 
and  good. 


THOMAS    m'kINNEY    JACK.  26' 


THOMAS    MCKINNEY    JACK. 


It  is  seldom  that  nature,  in  her  partiality  which  designates, 
here  and  there,  an  individual  as  the  favored  recipient  of  her 
special  endowments,  and  ordains  him  to  a  particular  sphere 
of  eminence,  groups  such  an  array  of  talent  in  the 
limits  of  a  single  family,  and  fashions  the  moral  and  intel- 
lectual traits  of  so  many  of  its  members  within  the  mould 
of  greatness,  as  she  conferred  upon  that  to  which  the  subject 
of  this  sketch  belonged.  As  the  author  has  had  occasion 
to  observe  in  another  work  in  regard  to  the  Yergers,  of 
Mi.'^sissippi,  the  Jacks,  of  Texas,  seem  to  have  been  born 
lawyers. 

Captain  James  Jack,  the  grandfather  of  Thomas,  was 
selected  by  his  fellow-citizens  of  Charlotte,  North  Carolina, 
to  convey  and  present  the  famous  Mecklenburg  Declaration 
of  Independence  to  the  Colonial  Convention  at  Philadel- 
phia. His  uncle,  Patrick  C.  Jack,  was  one  of  the  judges 
of  the  Supreme  Court  of  the  Texas  Republic,  and  his 
father,  William  H.  Jack,  whose  sketch  is  presented  in  this 
work,  was  one  of  the  most  distinguished  lawyers  of  the 
Texas  bar. 

Thomas  McKinney  Jack  was  born  at  San  Phelipe,  Texas, 
on  the  19th  of  December,  1831.  His  mother  was  Laura 
Harrison,  daughter  of  Isham  Harrison,  a  planter  of  South 
Carolina,  afterwards  of  Mississippi,  where  he  was  known  as 
"  Father  Harrison,"  and  was  one  of  the  best  men  the  author 
ever  knew.  Thomas  was  highly  educated,  and  having  at- 
tended Georgetown  College,  in  Kentucky,  a  short  time,  he 
entered  Yale  College,  from  which  he  was  graduated  in  1853 
with  all  the  literary  accomplishments  which  that  celebrated 
institution  could  bestow.  He  afterwards  read  law  in  the 
office  of  Judge  W.  P.  Ballinger,  of  Galveston,  his  brother- 


2G8  BENCH  AND  BAR  OF  TEXAS. 

in-Law,*  was  admitted  to  the  bar  in  that  city  in  1855,  and 
entered  upon  the  practice  of  his  profession  as  the  partner 
of  his  preceptor  with  the  most  flattering  prospects.  In 
1857  he  was  elected  to  the  position  of  County  Judge,  and 
in  1859  represented  Galveston  County  in  the  Legislature. 

In  1860  he  was  an  elector  on  the  Breckinridge  and  Lane 
ticket,  and  rendered  efficient  service  in  promoting  the  over- 
whelming majority  given  in  Texas  for  the  distinguished 
Kentuckian.  With  the  exception  of  these  intermissions, 
he  continued  his  practice  with  a  growing  reputation  until 
the  outbreak  of  the  civil  war.  Upon  the  withdrawal  of 
Texas  from  the  Union  in  1861,  he  acted  as  aid  to  General 
Sydney  Sherman  in  organizing  State  troops  at  Galveston, 
and  accompanied  the  expedition  for  the  capture  of  Fort 
Brown  on  the  Rio  Grande.  Returning  .to  Galveston,  he 
enlisted  in  the  Confederate  service  as  a  private  in  Wharton's 
company  of  Terry's  rangers,  and  never  quit  the  field  until 
the  close  of  the  war. 

Soon  after  joining  the  army  he  was  promoted  to  first 
lieutenant  and  made  aid-de-camp  to  General  Albert  Syd- 
ney Johnson,  who  had  known  him  from  childhood,  and  was 
serving  in  that  capacity  when  this  great  Southern  leader  fell 
swooning  into  his  arms  on  the  plains  of  Shiloh.  He  was 
then  transferred  to  the  adjutant-general's  department,  and 
was  assigned  to  duty  with  the  rank  of  major  as  adjutant- 
general  of  Polk's  corps  in  the  army  of  Tennessee.  He  was 
soon  afterwards  made  lieutenant-colonel,  and  served  upon 
the  stafl'  of  General  Polk  until  the  death  of  that  officer  at 
Kenesaw  Mountain,  who  also  died  in  his  arms.  He  was 
then  made  adjutant- general  of  the  district  of  Texas,  and 
served  as  such  until  the  termination  of  hostilities,  when  he 
returned  to  Galveston  and  resumed  the  practice  of  his  pro- 
fession. 

The  character  of  Thomas  M.  Jack  is  one  of  the  brightest 
luminaries  in  the  annals  of  Texas  eminence,  and  one  that 
would  have  adorned  the  purest  and  most  brilliant  pages  in 
the  history  of  any  age  or  country.  Inheriting  the  legacy 
of  ancestral  emulation,  the  spirit  which  impelled  the  third 
Brutus    to    emulate    the    glory    of   the    first,  he    possessed 


THOMAS    m'KINNEY    JACK.  269 

the  invaluable  stores  of  noble  examples  and  the  wealth  of 
hallowed  inspirations,  which  early  planted  in  his  bosom  the 
strongest  incentives  to  virtuous  and  vigorous  action,  and 
these  expanded  and  developed  into  the  highest  order  of 
moral  and  intellectual  character,  rounded  and  arched  over 
with  that  blending  of  virtues  which  constitute  the  patriot, 
the  philanthropist,  the  eminent  lawyer  and  the  perfect 
gentleman.  He  possessed  a  brave,  candid  and  honorable 
nature,  and  was  in  himself  the  mirror  of  honesty  and  truth. 
His  armor  was  always  burnished  for  the  maintenance  of 
right,  and  his  arrows  were  whetted  for  opposition  to 
wrong;  yet  he  was  always  courteous,  generous  and  chival- 
rous in  his  demeanor — high  wrought  and  sensitive  as  to 
the  means  and  methods  of  attaining  his  ends,  and  no  one 
was  more  tenderly  considerate  and  sympathetic  in  his 
reg-ard  for  the  feelins^s  of  others. 

He  was  a  lawyer  of  fine  ability,  and  his  career  at  the  bar 
was  like  a  meteor  which  flashed  upon  the  jurisprudence  of 
Texas  and  dispensing  its  beams  suddenly  disappeared  in  the 
fullness  of  its  glory.  In  the  study  of  his  profession  be 
cherished  the  lofty  purpose  of  becoming  a  champion  of 
justice,  a  factor  in  the  promotion  of  the  welfare  of  society, 
and  his  talent,  his  precept  and  example  elevated  the  profes- 
sion which  he  adorned,  and  bettered  the  community  in 
which  he  lived.  As  a  lawyer,  soldier  and  citizen,  the  glare 
of  his  character  will  shed  light  upon  the  future  generations 
of  Texas,  and  kindle  incentive  and  emulation  in  the  hearts 
of  all  who  aspire  to  the  attainment  of  the  highest  respect 
and  admiration  of  their  fellow-citizens. 

Colonel  Jack  was  married  in  1857  to  Miss  Nannie  Knox, 
who  was  a  native  of  Lincoln  County,  Missouri,  and  a  niece 
and  ward  of  the  venerable  Kobert  Mills,  of  Galveston,  who, 
at  the  time  of  his  death,  was  the  oldest  living  merchant  in 
Texas.  In  the  noble  qualities  and  accomplishments  of  this 
lady  he  found  a  polishing  response  to  every  lofty  sentiment 
and  noble  effort,  and  his  rougher  nature  became  chastened 
by  the  tender  cords  of  domestic  affection.  He  died  in 
Galveston  on  the  26th  of  August,  1880,  soon  after  his 
return   from   the  Cincinnati  Convention,  to   which  he  had 


270  BENCH  AND  BAR  OF  TEXAS. 

been  sent  as  a  delegate.  It  is  rarely  that  a  lawyer  amid  the 
fierce  rivalries  of  the  bar  can  command  or  maintain  the 
universally  affectionate  esteem  enjoyed  by  Colonel  Jack. 
He  never  permitted  the  heat  of  argument  to  render  him 
unobservant  of  a  kind  and  polished  ethics,  and  he  was  be- 
loved by  all  of  his  professional  associates.  I  will  close  these 
observations  upon  his  character  with  the  fervent  tributes 
paid  to  his  memory  by  members  of  the  Galveston  bar  upon 
the  announcement  of  his  death  to  the  courts  of  that  city  — 
by  those  who  knew  him  well  in  every  sphere  of  his  life. 

Remarks  of  Hon.  James  B.  Stubbs  :  — 

"  I  think  I  can  see  him  now,  scorning  danger,  his  face 
aflame  with  that  shining  light  we  have  wont  to  see  en- 
throned upon  his  brow  and  flashing  from  his  eyes  in  the 
forum,  as  he  maintained  the  right,  resented  the  wrong  and 
illustrated  the  high  purposes  and  generons  promptings  of 
which  he  was  a  living  exemplar  as  well  as  an  exponent. 

"  The  career  of  a  true  lawyer  affords  a  sphere  of  honor 
and  usefulness  second  to  that  of  no  other  vocation.  This 
he  recognized,  and  it  was  not  to  him  a  stepping-stone  to 
any  preferment.  He  was  the  heau  ideal  of  a  lawyer.  Who, 
that  has  ever  seen  or  heard  him  in  the  trial  of  a  cause, 
will  withhold  his  assent  to  this  statement?  He  never  sacri- 
ficed right  to  expediency.  From  the  opening  of  a  case  to 
its  close,  his  just  conception  of  the  law,  his  faculty  of  im- 
parting his  ideas,  his  skill  in  eliciting  evidence,  his  tact  in 
the  management  of  the  case,  his  fairness  to  his  adversary, 
and  then  his  lucid,  earnest  argument,  smoothly  flowing  in 
rounded  periods,  marshaling  facts  and  drawing  conchisions 
with  masterly  logic  and  eloquence,  all  held  the  interest,  ad- 
miration, and  carried  conviction  to  the  hearer.  Never  did 
he  '  extenuate  or  aught  set  down  in  malice.' 

"When  he  spoke,  his  face  usually  lit  up  with  a  radiant 
smile  and  his  cordial  greeting  spread  an  atmosphere  of 
cheerfulness  about  him.  If  his  mission  in  life  had  been  to 
make  men  happy,  well  was  it  fulfilled,  for  the  world  was 
better  and  happier  for  his  having  lived  in  it.  His  ready 
sallies  of  wit,  and  he  was  full  of  playful  raillery,  left  no 
sting.      In  a  group  of  persons,  he  was  the  central  figure  — 


THOMAS    M' KINNEY    JACK.  271 

the  choice  spirit.  That  indefinable  quality,  which,  for  want 
of  a  better  name,  is  called  personal  magnetism,  drew  men 
about  him  in  pleasant  talk,  and  his  views  were  sought,  and 
found  acceptation,  for  he  illumed  whatever  he  touched. 
He  was  the  light  and  life  of  every  circle.  Now  that  he  has 
gone,  how  dull  and  commonplace  seem  the  scenes  that 
know  him  no  more. 

"I  have  spoken  of  his  kindness  to  the  young.  He  was 
their  '  guide,  philosopher  and  friend,'  as  well  as  their  ad- 
mired pattern.  To  the  younger  members  of  his  profession 
he  was  especially  gracious,  showing  them  the  same  con- 
siderate courtesy  he  exhibited  to   the  first  men  of  the  land. 

"  He  was  the  soul  of  chivalry  and  honor.  His  winning 
address,  and  his  sterling  qualities  of  head  and  heart, 
rendered  him  the  most  perfect  gentleman  I  ever  knew. 
While  his  character  was  '  as  round  and  perfect  as  a  star,' 
yet,  if  I  were  called  upon  to  particularize  any  predominant 
trait,  I  would  name  his  sympathetic  kindness,  his  utter  un- 
selfishness, that  made  his  life  a  living  embodiment  of  the 
Golden  Eule." 

Response  of  Hon.  T.  C.  Hume:  — 

"  Is  there  a  man  of  this  bar  —  especially  a  young  .man  — 
who  has  not  been  comforted  by  his  words  of  encourage- 
ment simply  spoken  in  season ;  who  has  not  felt  the  pres- 
sure of  his  hand,  and  been  warmed  into  hope  by  the  light 
of  his  eyes,  at  some  time  when  the  need  of  a  friend  w^as 
exceeding  sore?  And  is  there  a  lawyer  here,  old  or  young, 
who  does  not  feel  it  is  something  —  that  it  is  much — to 
have  lived  within  the  sphere  of  this  man's  influence;  to  have 
marked  the  loftiness  of  his  professional  name  and  practice, 
and  to  have  confessed  to  his  own  heart  the  ennobling  reflec- 
tion  of  his  personal  virtues?  He  was  one  man  who  spoke 
no  slander,  nor  listened  to  it;  who  never  prostituted  the 
opportunities,  nor  solicited  the  employments,  nor  haggled 
for  the  rewards  of  the  profession ;  who  never  intervened  be- 
tween his  brother  and  the  clientage  he  deserved  to  win  or 
keep  ;  who  held  in  knightly  scorn  the  belittling  temptations 
which  often  beset  and  sometimes  degrade  our  ancient 
order." 


272  BENCH    AND    BAR    OF    TEXAS. 

Response  of  General  T.  N.  Waul :  — 

"In  the  prime  of  manhood,  in  the  fullness  of  physical 
vigor,  without  a  trace  of  decay  or  diminution  of  capacity; 
at  the  summit  of  professional  distinction,  in  the  merited 
enjoyment  of  the  noblest  of  earthly  rewards ;  the  respect 
and  admiration  and  the  love  of  all  who  knew  him  ;  still 
growing  and  waxing  stronger  in  all  his  great  elements,  he 
has  gone  from  us.  We  shall  greatly  miss  him  from  our 
faternity.  How  much  a  loved  and  only  sister,  the  guide  of 
his  boyhood,  the  adviser  of  his  mature  years,  the  daily 
companion  of  his  life,  shall  miss  him,  we  will  not  attempt 
to  describe.  Nor  can  we  realize  in  thought,  much  less  de- 
pict in  language,  how  much  his  wife  and  children  shall  miss 
him  as  the  evening  shadows  fall  darkly  upon  that  home 
of  which  he  was  the  light  and  life." 


CHAPTER  YII. 


THE  STATE  BENCH  —  EMINENT  LIVING  JUDGES  —  O.  M.  EGBERTS  —  EICH- 
ARD  COKE — J.  H.  BELL  —  A.  H.  WILLIE  —  THOMAS  J.  DEVINE — JOHN 
IRELAND  —  R.  S.  GOULD  —  J.  W.  STAYTON  —  C.  S.  WEST  —  R.  S.  WALKER 
—  JOHN  P.  WHITE  —  S.  A.  WILLSON  —  J.  M.  HURT  —  A.  S.  WALKER  — 
GEORGE   CLARK  —  A.    T.   WATTS  —  W.    S.    DELANEY  —  E.   B.   TURNER. 


ORAN    MILO    ROBERTS. 


This  eminent  lawyer  and  patriot  is  a  native  of  South 
Carolina  and  was  born  in  Laurens  District,  on  the  9th  of 
July,  1815.  At  an  early  age  he  removed  with  his  father's 
family  to  Ashville,  in  the  mountainous  region  of  North 
Alabama,  where  he  was  engaged  in  the  labors  of  the  farm. 
His  early  life  was  attended  with  many  difficulties  and 
trammeling  circumstances.  But  he  was  an  ambitious  and 
aspiring  youth,  and  determined  to  be  aut  Goesar  aut  iiullus. 
One  of  the  noblest  commentaries  upon  American  institu- 
tions is  the  facility  which  they  afford  to  genius  and 
rectitude  for  rending  the  clouds  of  obscurity,  for  bursting 
from  the  most  adamantine  gyves  of  condition  into  the  glare 
of  honor  and  the  full  round  orb  of  fame.  Fate  has  here 
no  iron  bed  upon  which  its  victims,  like  those  of  Procrustes, 
are  bound  and  fitted  by  the  fiat  of  unalterable  decree. 
Here  genius,  once  fledged  in  the  nest  of  morality,  leaps 
forth  like  a  young  eagle  from  its  eyrie,  and  spreading  the 
wings  of  resolution,  soars  away  to  the  heights  of  its  ambi- 
tion and  capacity.  Here  honor  and  distinction  demand  no 
glittering  armorial,  wealth  no  splendid  heirloom  of  inherit- 
ance, and  eminence   no  pomp  of  pride  or  lictorial  badge. 

18  (273) 


274  BENCH  AND  BAR  OF  TEXAS. 

Here  fame  requires  no  arbitrary  circumstances,  depends 
upon  no  golden  opportunities,  and  exacts  no  impersonal 
qualifications;  but  only  that  he  who  would  reach  its  realms 
shall  be  guided  by  the  beacons  which  it  has  established 
along  the  sacra  via  of  its  glory. 

At  the  age  of  sixteen  years,  young  Roberts,  full  of  natu- 
ral genius  and  ardor,  and  with  the  inspirations  which  the 
institutions  of  his  country  engendered,  left  his  plow,  and 
with  slender  means  determined  to  obtain  an  education,  and 
met  at  the  outset  with  the  fortune  which  Providence  seems 
always  to  provide  for  those  who  earnestly  seek  their  own 
advancement.  Through  the  kindness  of  Ralf  P.  Lowe,  an 
attorney  of  Ashville,  and  afterward  an  eminent  lawyer, 
governor,  and  supreme  court  judge  of  Iowa,  he  obtained 
a  situation  in  his  office,  where  he  prepared  himself  for 
college,  and  in  1836,  at  the  age  of  twenty-one  years, 
graduated  at  the  University  of  Alabama  in  a  class  which 
furnished  many  others  who  afterwards  attained  distinction. 

He  began  the  study  of  law  in  the  office  of  Judge  Ptolemy 
Harris,  near  St.  Stephens,  in  South  Alabama,  and  acted  at 
the  same  time  as  private  tutor  to  his  sons  to  defray  his 
expenses.  He  completed  his  studies  in  the  office  of  Wm. 
P.  Chilton,  of  Talladega,  who  was  subsequently  one  of  the 
judges  of  the  Supreme  Court  of  Alabama.  Having  obtained 
his  license,  he  settled  at  Ashville  in  the  successful  practice 
of  his  profession,  and  was  soon  afterward  elected  to  repre- 
sent his  county  in  the  Legislature  of  the  State. 

But  his  aspirations  was  not  yet  satisfied  with  the  flattering 
prospects  which  spread  themselves  before  him.  The  young 
Eepublic  of  Texas,  bright  with  the  halo  of  fame  and  the 
glory  of  heroic  achievement,  extended  inviting  arms  to  his 
patriotism.  Its  unlimited  resources  and  unbounded  pros- 
pects presented  their  allurements  to  his  ambition,  and  in 
1841  he  removed  to  Texas  and  located  at  San  Augustine, 
which  was  at  that  time  a  place  of  great  political  and 
professional  activity,  and  the  Athens  of  the  Republic.  He 
was  equal  to  the  severe  test  which  a  claim  to  distinction 
demanded  and  to  the  expectation  which  his  talents  engen- 
dered,  and  he   was  soon    recognized  as  one   of  the  most 


ORAN    MILO    ROBERTS.  275 

skillful  and  logical,  as  well  as  most  learned  advocates  at  the 
bar  of  that  district. 

The  elevated  standard  of  professional  excellence  estab- 
lished by  the  eminent  array  of  legal  talent  which  surrounded 
him,  and  which  he  made  the  goal  of  his  attainment, 
beckoned  him  upward  and  onward.  His  advancement 
responded  to  the  aspirations  of  his  genius,  and  in  1844  he 
was  appointed  by  President  Houston  to  the  office  of  district 
attorney,  which  he  held  until  the  annexation  of  Texas  to 
the  Union. 

It  was  customary  at  that  time  for  the  lawyers  to  travel 
around  the  circuit  in  company  with  the  judge  ;  it  being  an 
old  English  custom  which  was  introduced  at  an  early  day 
in  the  colonies,  and  long  lingered  in  the  States  of  the  Union, 
and  was  transplanted  in  the  Republic  by  the  judges  aiid 
lawyers  who  had  been  accustomed  to  the  usage  in  their 
native  States. 

In  reference  to  this  habit  Governor  Roberts  says :  ' '  When 
the  time  for  holding  the  courts  arrived  it  was  not  unusual 
to  see  a  dozen  or  more  lawyers  and  the  judge  mount  their 
horses,  Avith  saddle-bags,  blankets,  and  tie  ropes;  and,  thus 
equipped,  start  on  their  journey  around  the  district,  which 
then  embraced  many  counties,  comprising  a  large  scope  of 
country.  As  some  of  them  would  drop  out  of  the  company 
at  different  points  others  would  fill  their  places,  so  that 
about  an  equal  number  of  traveling  lawyers  in  addition  to 
the  local  bar,  would  be  found  in  attendance  at  nearly  every 
court.  This  mode  of  practice  was  continued  until  the  civil 
war,  since  which  the  members  of  the  bar  have  become  more 
and  more  localized  in  their  practice." 

In  these  professional  excursions  he  traveled  over  the 
country  from  the  Sabine  to  the  Trinity  —  a  distance  of  one 
hundred  and  fifty  miles,  and  experienced  all  the  hardships 
incident  to  travel  in  a  new  and  sparsely  settled  country, 
encountering  rain  and  storm,  sloughs,  and  swollen  streams, 
which  he  was  often  obliged  to  swim  in  order  to  reach  his 
destination  at  the  proper  time.  On  one  of  these  occasions, 
being  the  youngest  man  in  the  party,  he  was  selected  to 
swim  theNeches  River  on  horseback  and  bring  over  a  ferry- 


276  BENCH  AND  BAR  OF  TEXAS. 

boat  which  was  fastened  to  the  opposite  bank.  He  says, 
however,  that  the  universal  hospitality  of  the  people  amply 
compensated  them  for  the  fatigues  and  inconveniences  of 
these  journeys.  Night  and  day  their  doors  were  thrown  open 
to  the  travelers,  and  a  hearty  welcome  extended  them  to 
share  whatever  comfort  they  could  render  and  usually  with- 
out charge.  He  says  that  their  humble  fare,  seasoned  with 
pure  and  disinterested  kindness,  was  more  palatable  than 
the  most  artistic  dishes  of  modern  hotels. 

It  was  during  these  travels  that  he  first  observed  the 
character  and  habits  of  the  people  of  all  classes  and  occu- 
pations, the  peculiar  and  diversified  characteristics  of  the 
country,  and  its  varied  natural  productions  and  capabilities  ; 
which  excited  the  investigations  of  his  inquiring  mind,  and 
afforded  him  a  knowledge  of  the  wants  and  wishes  of  the 
people,  which  he  afterwards  impressed  upon  the  laws  aud 
institutions  of  the  State. 

On  these  occasions  he  was  .brought  into  intimate  com- 
panionship with  the  lawyers  of  the  district,  who  were  for 
the  most  part  men  of  culture  and  intellectual  vigor,  but  of 
distinctive  characters  and  varied  attributes,  and  he  learned 
from  this  informal  association  with  them  the  varied  ele- 
ments and  compositions  of  professional  character.  From 
the  old  citizens  of  the  country  he  learned  much  of  its  past 
history.  Among  these  there  were  men  who  had  settled  in 
the  land  as  early  as  1822,  and  had  participated  in  all  the 
revolutions  and  changes  of  government  that  had  occurred 
since  that  time.  He  found  them  familiar  with  all  the  stir- 
ring events  of  the  past  and  willing  at  all  times  to  communi- 
cate them.  His  business  afterwards  led  him  to  extend  his 
researches  over  nearly  the  entire  State  and  to  note  the  va- 
riety in  the  condition  of  things  in  every  section,  which  furn- 
ished a  still  wider  field  for  investigation  and  reflection. 

On  the  organization  of  the  judiciary  of  the  new  State 
in  1846,  he  was  appointed  by  Governor  Henderson  judge 
of  the  Fifth  efudicial  District.  He  was  then  but  thirty 
years  of  age;  but  public  sentiment  called  for  his  services 
and  his  promotion  was  received  with  general  satisfaction. 
He  was  appointed  for  the  term  of  six  years  ;  but,  having 


ORAN    MILO    ROBERTS.  277 

served  five  years,  during  which  he  was  engaged  more  than 
eight  mouths  of  each  year  in  the  active  duties  of  the  bench, 
he  resigned  and  returned  to  his  practice  at  the  bar. 

The  judicial  duties  of  Judge  Roberts  during  that  period 
were  peculiarly  arduous  and  exacting.  He  was  the  first 
judge  of  the  district  under  the  judiciary  system  of  the 
State  government,  and  the  task  devolved  upon  him  of 
establishing  a  course  of  procedure  in  conformity  with  the 
new  order  of  things  ;  to  interpret  and  apply  the  body  of 
statutes  enacted  under  the  new  organic  law,  to  bring  them 
for  the  first  time  to  the  test  of  the  Constitution,  both  of 
the  State  and  the  United  States,  and  to  fit  them  upon 
society.  The  rights,  immunities,  and  liabilities  of  the  citizen 
were  to  be  ascertained  and  fixed  upon  a  solid  basis,  com- 
posed of  the  different  elements  upon  which  they  rested, 
and  fashioned  by  the  new  innovations,  both  of  the  statute 
and  organic  law.  This  was  rendered  more  difficult  by  the 
scarcity  of  precedent.  But  few  questions  of  importance 
had  been  settled  by  the  Supreme  Court  of  the  Republic, 
and  the  untamed  elements  of  its  jurisprudence  mingled 
with  the  unexplored  streams  of  the  new  system.  To  lead 
these  into  the  smoo»th  channels  of  justice  required  legal 
talent  and  judicial  capacity  of  the  highest  order.  But  his 
ability  and  industry  met  all  the  requirements  of  the  situa- 
tion ;  and,  gathering  up  the  legal  fragments  of  the  revolu- 
tion and  annexation,  he  blended  them  into  a  harmonious 
machinery,  and  made  a  lasting  impression  upon  the  juris- 
prudence of  the  State. 

In  1857  he  was  elected  associate  justice  of  the  Supreme 
Court,  to  fill  the  vacancy  caused  by  the  death  of  Judge 
Lipscomb,  and  held  this  position  until  1862,  when  he  re- 
signed and  became  colonel  of  the  Eleventh  Regiment  of 
Texas  infantry  in  the  Confederate  arniy. 

A  thorough  Jeffersonian  in  his  views  of  government. 
Judge  Roberts  was  a  staunch  advocate  of  State's  rights  and 
was  in  favor  of  prompt  and  decisive  measures  to  repel  the 
aggression  of  the  Republican  party  upon  the  rights  and 
institutions  of  the  South.  As  early  as  December,  1860, 
lie  delivered  an  able  speech  at  Austin  upon  the  "  Impending 


278  BENCH    AND    BAR    OF    TEXAS. 

Crisis,"  in  which  he  said:  "  What  shall  Texas  dor  As 
one  of  her  citizens,  I  am  for  State  action  —  action  by  the 
constituted  authorities  of  the  State  —  action  singly  and. 
conjointly  with  other  Southern  States,  until  we  are  made 
secure  in  our  rights,  liberties  and  honors.  Such  action 
should  be  prompt,  calm,  deliberate,  harmonious  and  well 
directed,  so  as  to  secure  the  desired  object,  and  at  the  same 
time  preserve  peace  and  social  order  among  ourselves.  Our 
alleo-iance  is  due  to  both  the  State  and  Federal  o-overn- 
ments,  because  the  sovereign  power  of  Texas,  at  the  time 
of  our  annexation  to  the  general  government  so  ordained  it 
as  its  will.  And  until  the  same  sovereign  power  shall  be 
brouofht  into  action,  and  declare  a  different  will,  it  is  our 
duty  as  citizens  to  make  ourselves  subservient  to  the  one  as 
well  as  the  other." 

Discussing  the  question  whether  it  was  best  to  seek  re- 
dress within  the  Union  by  demanding  a  constitutional 
amendment  guaranteeing  protection  to  the  rights  of  the  South- 
ern States,  or  by  quietly  withdrawing  from  the  Union,  he  con- 
tinued: "In  all  these  stages  of  State  action,  too  great 
solicitude  can  not  be  felt  by  all  parties,  to  preserve  social 
order ;  so  that  if  the  Federal  government  should  refuse 
to  recognize  the  right  of  the  State  to  exercise  its  reserved 
power  of  changing  its  form  of  government,  and  should  en- 
deavor to  subjugate  it,  the  energies  of  the  people  may  be 
united  in  repelling  invasion.  Which  one  of  these  remedies 
may  be  adopted  is  for  the  people  to  say  when  they  shall 
have  found  the  means  of  expressing  their  will.  It  is  my 
purpose  now  to  show  that  the  present  attitude  of  public 
affairs  justifies  them  in  adopting  either  of  the  remedies 
that  they  may  think  necessary  for  their  safety.  I  have  no 
fears  that  inconsiderate  rashness  will  control  them.  The}^ 
have  pondered  upon  the  issues  of  this  crisis  long  and  well. 
They  have  made  up  their  minds.  There  is  no  agrarian 
spirit  abroad  in  this  country.  There  is  no  war  of  classes. 
There  is  no  conflict  between  labor  and  capital.  Our  peo- 
ple are  not  asking  or  seeking  to  extort  any  favors  from  the 
government  to  themselves,  or  to  deprive  others  of  any 
right.     They  have  no  desire  for  a  social  rupture  at  home. 


ORAN    MILO    ROBERTS.  279 

Their  excitement  arises  from  an  entirely  opposite  cause  — 
a  high  resolve  now  to  throw  themselves  in  the  breach,  not 
to  destro}',  but  to  protect  rights  ;  not  to  destroy  property', 
but  to  protect  property;  not  to  destroy  life,  but  to  make 
life  worth  having;  not  to  produce  discord,  but  to  end  it. 
This  excitement  is  not  a  shallow  noisy  riffle,  but  a  deep 
irresistible  current,  springing  from  the  firmest  conviction 
of  the  mind." 

These  sentiments  vibrated  upon  the  chords  of  the  public 
heart,  and,  in  consequence  of  the  views  which  he  announced 
in  this  speech,  he  was  chosen  by  acclamation  president  of 
the  Texas  Secession  Convention  of  1861,  in  Avhich  he  advo- 
cated but  one  remedy  —  that  Texas  should  resume  her  sov- 
ereignty and  withdraw  from  the  Union  ;  and  he  promptly 
accepted  the  appeal  to  arms.  He  was  a  gallant  and  efficient 
officer,  and  led  the  Eleventh  Regiment  with  distinction 
through  the  campaigns  of  the  Trans-Mississippi  Depart- 
ment. 

In  1864,  while  still  at  the  head  of  his  regiment,  he  was 
elected  Chief  Justice  of  the  Supreme  Court  to  succeed 
Judge  Wheeler,  upon  which  he  resigned  his  commission  in 
the  army  and  again  took  his  seat  upon  the  bench.  At  the 
close  of  the  war  he  returned  to  Tyler  and  resumed  the 
practice  of  his  profession ;  but  his  public  services  were 
soon  again  placed  under  requisition,  and  he  was  elected  to 
represent  his  county  in  the  State  convention  of  1866,  and 
was  made  chairman  of  the  judiciary  committee  of  that 
assembly,  in  "which  he  took  an  efficient  part  in  framing  the 
Constitution  under  the  Johnson  reconstruction. 

In  August,  1866,  he  was  elected  to  a  seat  in  the  United 
States  Senate,  and  repaired  with  his  credentials  to  the  Fed- 
eral capital,  but  being  rejected,  together  with  his  colleao"ue, 
the  venerable  David  G.  Burnett,  he  placidly  returned  to 
Texas  and  confined  his  interest  in  public  affairs  to  the  re- 
demption of  his  State  from  the  Moloch  grasp  of  Federal 
oppression. 

From  1868  to  1870  he  was  professor  of  law  in  the  High 
School  at  Gilmer,  Texas,  and  upon  the  return  of  Demo- 
cratic ascendancy  in  1874,  he  was  reappointed  by  Governor 


280  BENCH  AND  BAR  OF  TEXAS. 

Coke  to  the  office  of  Chief  Justice  of  the  Supreme  Court, 
and,  in  1876,  was  elected  to  the  same  position  by  the 
people. 

As  a  lawyer  Judge  Roberts  is  thorough  and  jDrofound. 
Tutored  in  the  school  of  early  labor,  he  began  the  study  of 
his  profession  properly,  and  early  acquired  the  requisite 
and  infallible  habits  of  success.  His  love  of  truth  and  his 
powers  of  research  found  no  satisfaction  within  the  bounds 
of  superficiality  and  no  lodgment  upon  the  surface  of  in- 
vestigation ;  hence  he  never  rested  with  the  comprehension 
of  mere  abstract  propositions,  but  sought  the  origin,  his- 
tory and  philosophy  of  law.  Subsidiary  to  these  qualities, 
he  possessed  natural  endowments  of  a  high  order.  The 
natural  bent  of  his  mind  is  highly  philosophical  and  re- 
flective. His  keen  and  ready  perception,  his  trained  habits 
of  analysis  and  logical  synthesis,  enabled  him  to  eliminate 
principle  from  sophistry,  to  sift  the  real  from  the  hypo- 
thetical, and  present  truth  in  the  simple  and  plain  robes  of 
common  sense. 

These  qualities  which  had  given  him  reputation  as  a 
lawyer  and  distinction  as  a  district  judge,  he  brought  to  the 
Supreme  Bench  enlarged  and  intensified  by  experience,  and 
ripened  by  the  sunshine  of  his  meridian  intellect.  His 
duties  as  a  Supreme  Judge  gathered  and  concentrated  his 
powers,  and  he  blended  the  ardor  of  devotion  and  the  candor 
of  rectitude  with  the  calm  depths  of  wisdom. 

His  decisions  are  distinguished  for  their  logical  clearness, 
their  search  for  truth  and  justice,  and  for  their  lucid  expos- 
ition of  principle.  It  was  said  of  the  brilliant  Sergeant  S. 
Prentiss  that  he  "  argued  a  case  all  to  pieces;"  and,  while 
Judge  Roberts  always  avoids  mere  dictums  and  questions 
non  coram,  it  may  be  said,  that  as  to  its  merits,  he  decides 
a  case  all  to  pieces.  He  leaves  no  question  in  doubt  neces- 
sary for  the  vindication  of  justice,  or  to  establish  clearly 
the  rights  and  relations  of  the  parties. 

His  opinions  are  numerous.  They  extend  through  fifteen 
volumes  of  the  Texas  Reports,  and  involve  almost  every 
important  question  that  can  affect  society.  His  interpreta- 
tion of  the  rule  in  Shelly's  Case,  21  Texas,  804,  in  which  he 


OR  AN    MILO    ROBERTS.  281 

hekl  that  in  a  deed  made  to  a  person  for  the  term  of  his 
natural  life,  and  at  death  to  his  lawful  issue  forever,  the 
words  "lawful  issue"  are  words  of  purchase,  and  not  of 
limitation,  has  been  adopted  by  several  law  colleges. 

The  following  are  among  the  important  questions  which 
his  decisions  have  enlightened :  The  right  of  eminent 
domain,  22  Texas,  504;  statute  of  frauds  explained,  22 
Texas,  708  ;  right  to  forfeit  charter,  24  Texas,  80  ;  man- 
damus against  a  State  officer,  24  Texas,  317 ;  law  and 
justice  compared,  25  Texas,  245;  character  of  deceased 
evidence  in  murder  cases,  43  Texas,  243;  mandamus  against 
commissioner  of  general  land  office  —  one  of  the  finest 
opinions  in  Texas  jurisprudence  —  40  Texas,  647  ;  rules  for 
the  courts  of  Texas  —  drawn  by  him  —  47  Texas,  598. 
These  cases  will  well  repay  the  most  careful  study. 

In  1878  he  was  elected  Governor  of  Texas,  and  his 
administration  was  characterized  by  the  most  patriotic, 
vigorous  and  successful  efforts  for  the  promotion  of  the  mate- 
rial prosperity  of  the  State,  and  not  only  gave  unusual  satisfac- 
tion to  its  citizens,  but  added  luster  and  honor  to  its  name 
abroad.  In  1880  he  was  re-elected,  and  in  his  inaugural  address 
to  the  seventeenth  Legislature,  said :  "In  review  of  the 
eventful  career  of  Texas  in  the  past,  long  an  unknown  land  to 
the  civilized  world,  emerging  into  existence  in  the  gloom  of  a 
far-off  country,  cradled  in  revolutions  and  wars,  growing  up 
with  a  history  filled  with  sore  trials  and  grievous  sacrifices, 
alternated  by  glorious  achievements,  both  civic  and  military, 
famous  for  her  great  men  and  chivalric  people,  and  now 
rising  up  conspicuously  into  general  view,  with  her  vast 
proportions  and  magnificent  resources,  and  fairly  entering 
upon  the  grand  struggle  for  their  development,  I  can  but 
feel  diffident  of  my  ability  to  be  equal  to  the  task  before 
me  as  your  chief  magistrate,  now  for  the  second  time  called 
to  preside  over  the  destinies  of  our  beloved  State.  But 
sustained  by  an  ardent  zeal  for  her  prosperity  and  future 
greatness,  I  cheerfully  and  hopefully  accept  the  jDosition  at 
the  behest  of  a  generous  people,  who  have  manifested  their 
desire  to  place  their  public  interests  under  my  care  and 
direction,   as  they   have   done  before.     It  is  only  by  the 


282  BENCH  AND  BAR  OF  TEXAS. 

wisdom  of  the  Legislature,  the  harmonious  co-operation  of 
the  executive  officers,  and  the  patriotic  aid  of  the  citizens 
that  I  can  hope  to  be  equal  to  the  grave  responsibilities 
imposed  upon  me,  in  the  effort  to  make  Texas  what  she 
should  be  in  the  near  future — the  great  and  prosperous 
State  of  the  American  Union." 

Serious  efforts  had  been  made,  from  time  to  time,  to 
rejnove  the  capital  from  Austin,  and  the  diversified  and 
sometimes  conflicting  interest  of  the  State  had  even  caused 
the  project  of  dividing  it  into  several  States  to  be  discussed. 
To  both  of  these  enterprises  Governor  Roberts  was  strenu- 
ously opposed.  He  wished  to  preserve  Texas  in  all  the 
grandeur  of  its  original  integrity  and  in  all  the  panoply  of 
its  power,  and  he  appreciated  the  wisdom  of  the  patriots 
who  selected  Austin  as  the  seat  of  government.  The  de- 
struction of  the  capitol  building  by  fire  caused  the  question 
of  removal  to  be  agitated  with  increased  ardor  in  some  parts 
of  the  State  during  his  first  administration,  and  it  was  dur- 
ing his  second  administration  that  provision  was  made  and 
a  contract  efiected  for  the  erection  of  a  capitol  building 
which,  when  completed  according  to  the  specifications,  will 
be  next  to  the  capitol  at  Washington,  perhaps  the  most 
spacious  and  elegant  edifice  in  America.  This  building 
was  by  the  original  contract  to  be  constructed  of  limestone 
of  a  standard  quality  quarried  near  the  citj'  of  Austin  ;  but 
it  being  recently  ascertained  that  a  sufficiency  of  the  re- 
quired material  could  not  be  procured  from  the  neighboring 
quarries,  a  board,  authorized  by  the  Legislature  and  consist- 
ing of  the  present  Governor,  Controller,  Treasurer,  and 
Attorney-General,  has  so  amended  the  original  contract  as 
to  cause  the  edifice  to  be  built  of  a  beautiful  speckled  fos- 
siliferous  granite  found  in  inexhaustible  quantities  in  Burnet 
County.  For  this  structure  the  State  by  the  original  con- 
tract agreed  to  grant  to  the  contractors  three  millions  of 
acres  of  the  public  lands  in  one  body,  which  comprises  a 
territory  perhaps  larger  than  the  State  of  Ehode  Island,  and 
by  the  amended  contract  the  contractors  are  to  have  in  ad- 
dition the  labor  of  five  hundred  convicts  without  cost.  The 
buildiuir  as  estimated  will  cost  over  five  million  of  dollars. 


ORAN    MILO    ROBERTS.  283 

and  its  erection,  it  is  hoped,  forever  unifies  the  State  and 
forever  establishes  Austin  as  its  capital. 

There  is  no  man  in  Texas  more  familiar  with  its  people, 
its  products,  its  varied  characteristics,  diversified  interests 
and  vast  resources,  than  Governor  Roberts,  and  while  Gov- 
ernor of  the  State  in  1881,  he  found  time  amidst  his  official 
duties  to  embody  his  knowledge  in  a  valuable  little  book 
describing  Texas,  and  the  development  of  its  advantages 
and  resources.  In  this  work  he  presents  the  causes  of  de- 
lay in  the  settlement  of  the  country,  which  he  attributes 
chiefly  to  its  having  no  good  port  of  entry  on  the  Gulf 
Coast.  He  also  presents  an  outline  of  its  physical  geo- 
graphy, the  great  variety  of  its  productions,  the  comparison 
of  its  different  belts,  its  natural  resources,  its  natural  wealth 
as  found  in  its  mineral  waters  and  its  water  courses,  the 
methods  of  cultivation  of  crops,  the  modes  of  transportation 
and  of  travel  in  Texas,  its  flora  and  fauna.  In  this  work 
he  shows  that  the  pursuit  of  a  train  of  useful  business  in 
Texas  presents  a  reasonable  certainty  of  success  to  every 
one  who  will  intelligently  and  steadily  follow  it. 

He  was  a  strenuous  advocate  and  supporter  of  the  educa- 
tional interests  of  the  State,  and  in  his  message  to  the 
Legislature  in  1881,  said: 

"In  all  the  grades,  from  the  highest  to  the  lowest,  the  edu- 
cational system  should  be  regulated  and  adapted  to  the 
wants  of  the  people  in  every  condition  of  life  j  should  have 
in  all  its  parts  and  branches  a  well  defined  consistency  in 
relation  of  one  to  the  other  in  the  different  gradations,  and 
should  all  be  under  the  same  supervision,  government  and 
control,  to  the  extent  that  it  is  fostered  by  the  State  gov- 
ernment, not  including  private  institutions  of  learnino-. 
The  natural  division  in  the  gradation  of  schools,  in  order  to 
meet  the  wants  of  the  people  is  into  three  steps  or  degrees 
of  education.  The  common  schools  for  the  millions,  the 
academies  for  the  thousands  and  the  college  or  university 
for  the  hundreds.  So  it  has  been  and  ever  will  be  ;  and 
the  encouragement  and  provision  for  each  degree  are  equally 
essential  in  the  effort  to  elevate  society."  His  career  as 
Governor  was  highlv  beneficial  to    the   State,  and  when  he 


284  BENCH  AND  BAR  OF  TEXAS. 

retired  from  that  office  in  1883,  he  left  the  affairs  of  Texas 
in  a  prosperous  condition. 

Ex-Governor  Kobeits  is  a  man  of  great  amiability  of  char- 
acter. In  social  life  he  is  bland,  polished  and  refined,  yet 
plain  and  unostentatious  in  his  manners,  and  is  a  general 
favorite  with  the  bar  and  people  of  Texas.  His  vast  store 
of  learning,  his  pure  professional  and  social  ethics,  and  his 
conversational  powers,  render  him  a  welcome  and  interest- 
ing guest  in  every  circle,  and  he  is  revered  by  the  rising 
generations  of  the  State. 

In  1883  he  was  appointed  by  the  Board  of  Regents  Pro- 
fessor of  Law  in  the  University  of  Texas  —  a  position 
which  he  now  holds,  and  for  which  he  is  peculiarly  qualified 
by  his  knowledge  of  law  and  his  eminent  exemplification  of 
the  highest  professional  standard. 

Ex-Governor  Roberts  is  now  in  his  seventieth  year,  and, 
like  the  Grecian  sage,  has  seen  two  generations  pass  awa}^ 
whose  polity  was  enlightened  by  his  wisdom,  whose  welfare 
was  promoted  by  his  counsel,  and  now  the  third  catches  the 
inspiration  of  his  example.  He  is  a  living  Gamaliel  of  the 
perfect  manner  of  democratic  customs  and  institutions,  and 
his  services  are  still  eminently  useful  in  the  inculcation  of 
the  great  principles  of  truth  and  the  precepts  of  wisdom, 
as  well  as  the  lessons  of  a  noble  example,  upon  the  minds 
of  the  rising  generations  of  Texas  ;  and  when  he  shall  be 
summoned  from  the  sphere  of  his  earthly  labors  there  is  no 
one  who  will  go  up  to  the  great  high  court  with  a  clearer 
brief — with  a  brighter  scroll  of  purpose,  of  duty  and  of 
performance. 


RICHARD    COKE.  285 


RICHARD    COKE. 


The  distinguished  subject  of  this  sketch  was  born  in  Vir- 
ginia, in  the  year  1829.  He  had  the  advantages  of  a  thor- 
ough education,  and  graduated  with  honor  at  William  and 
Mary  College  in  1849.  Having  chosen  the  profession  of  law, 
he  diligently  and  thoroughly  prepared  himself  for  the  bar, 
and  on  obtaining  his  license  in  1850  he  removed  to  Texas  and 
located  at  Waco,  where  he  began  the  practice  of  his  profes- 
sion and  has  since  continued  to  reside.  He  was  a  young  man 
of  sterling  qualities,  steady  habits,  and  popular  manners, 
which,  in  conjunction  with  a  strong  mind  and  finished  edu- 
cation, soon  opened  to  him  the  avenues  of  success  and  dis- 
tinction. His  professional  ascent  was  rapid  and  brilliant, 
and  in  a  few  years  he  took  a  position  in  the  front  rank 
of  the  bar  of  his  district. 

In  1865  he  was  appointed  district  judge,  and  so  ample 
were  the  qualifications  which  he  manifested  in  this  capacity, 
and  so  able  and  efficient  was  his  career  upon  the  district 
bench,  that,  i«n  18(56,  he  was  elected  an  associate  justice  of 
the  Supreme  Court.  He  held  that  position  three  years,  and 
adorned  it  with  an  ability  and  purity  honorable  to  himself 
and,  at  that  time,  particularly  elevating  to  the  jurisprudence 
of  the  State. 

At  the  general  election  held  in  December,  1873,  in  pur- 
suance of  an  act  of  the  Legislature  and  the  proclamation  of 
E.  J.  Davis,  then  Governor  of  Texas,  the  Democrats  elected 
the  entire  delegation  of  Congressmen,  a  large  majority  of 
the  members  of  the  State  Legislature,  and  at  the  same  time 
elected  Richard  Coke  Governor  of  Texas  by  a  majority  of 
nearly  fifty  thousand  votes.  The  Supreme  Court  was  at 
that  time  composed  of  radical  partisans,  some  of  whom 
were  exotics  and  adventurers,  of  military  importation ;  and 


286  BENCH  AND  BAR  Or  TEXAS. 

the  leaders  of  the  Republican  party,  having  procured  an 
individual  to  act  as  designated,  concocted  a  fictitious  case  to 
enable  the  court  to  decide  upon  the  political  question  as  to 
the  validity  of  the  election.  For  this  purpose  one  Jose 
Rodriguez,  a  Mexican,  applied  to  Wesley  Ogden,  of  the 
Supreme  Court,  whom  the  reporters  contemptuously  style 
the  presiding  judge,  for  a  writ  of  habeas  corpus,  alleging  in 
his  petition  that  he  was  restrained  in  his  liberty  by  one  A. 
B.  Hall,  sheriff  of  Harris  County,  upon  the  charge  of 
having  voted  illegally  at  the  late  election.  The  case  came 
up  on  the  trial  of  the  writ  under  the  style  of  Ex  parte 
Rodriguez,  reported  in  39  Texas,  705,  and  Hon.  Frank  M. 
Spencer,  district  attorney  for  Harris  County,  was,  in  the 
absence  of  the  Attorney-General,  appointed  by  the  court 
to  represent  the  State.  A  number  of  gentlemen  represent- 
ing the  Austin  bar,  obtained  the  consent  of  the  court  to 
assist  him.  These  were  M.  A.  Long,  C.  S.  West,  Thomas  E. 
Sneed,  W.  M.  Walton  and  A.  W.  Terrell ;  while  A.  J.  Hamil- 
ton represented  the  relator.  The  counsel  for  the  State 
promptly  challenged  the  jurisdiction  of  the  court  upon  the 
ground  that  the  case  was  fictitious  and  was  invented  for  the 
purpose  of  extorting  from  the  court  an  opinion  as  to  the 
constitutionality  of  the  election.  This  position  was  sub- 
stantiated by  the  sworn  testimony  of  Judge  George  Gold- 
thwaite,  of  Houston,  who  was  cognizant  of  the  facts,  and 
by  the  personal  averment  of  the  district-attorney,  who 
asked  permission  of  the  court  to  expose  the  fraud,  or  that 
Rodriguez  be  discharged.  The  motion  to  dismiss  for  want 
of  Jurisdiction  was  overruled,  whereupon  the  district 
attorney,  representing  the  Attorney-General,  indignantly 
withdrew  from  the  case.  The  court  then  proceeded  to  the 
extremity  of  the  issue  and  declared  the  election  illegal  and 
void,  upon  which  Governor  Davis  issued  his  proclamation 
prohibiting  the  assembling  of  the  newly  elected  Legislature. 
That  body,  however,  promptly  convened  on  the  day  ap- 
pointed for  its  meeting;  yet  the  Governor  declined  to 
receive  any  communication  from  it,  and  appealed  to  General 
Grant,  then  President  of  the  United  States ;  but  he  declined 
to  interfere.     Davis  finally  vacated  -the  Governor's    ofiice 


RICHARD    COKE.  287 

and  Governor  Coke  took  peaceable  possession  of  it.  The  re- 
porters, in  a  note  to  this  case,  aptl}''  remark  that  it  belongs 
to  the  political  historian  to  perpetuate  the  memory  of  the 
events  and  circumstances  of  this  case ;  and  as  to  the  corre- 
spondence and  details  connected  with  it,  and  the  observa- 
tions which  it  suggests,  the  author  of  this  work  will  likewise 
pass  the  task  of  commemorating  them  to  that  functionary. 
It  was,  as  the  reporters  observe,  a  purely  partisan  political, 
and  not  a  judicial  question. 

On  the  15th  of  January,  1874,  Governor  Coke  and  Lieu- 
tenant-Governor Hubbard  were  duly  inaugurated  and  in- 
stalled in  their  respective  offices,  and  the  Legislature 
immediately  enacted  an  amendment  to  the  Constitution 
reorganizing  the  Supreme  Court  and  increasmg  the  number 
of  judges  to  five,  upon  the  adoption  of  which  Governor 
Coke  promptly  reorganized  the  court  and  removed  the 
three  judges  of  Ex  parte  Rodiguez  fame.  His  appointments 
to  the  bench  and  to  all  other  important  positions  were 
highly  judicious  and  felicitous,  and  during  his  administra- 
tion the  entire  machinery  of  the  State  government, 
wrenched  from  partisan  control  and  the  clogs  of  imbecility 
and  corruption,  was  again  brought  into  smooth  and  har- 
monious motion.  New  avenues  of  prosperity  were  opened 
up  to  the  people,  new  enterprises  were  stimulated,  and 
new  hopes  inspired,  until  the  highest  anticipations  of  pros- 
perity seized  upon  the  minds  of  all  classes  of  people. 
Railroad  communications  of  the  most  vital  importance  were 
established,  and  a  constant  tide  of  immigration  flowed  into 
the  State. 

The  people  of  Texas  smarted  under  the  exotic  Constitu- 
tion forced  upon  them  by  the  military  authority  and  its 
allies  in  the  State,  and  it  was  under  the  auspices  of  the  ad- 
ministration of  Governor  Coke  that  the  excellent  constitu- 
tion of  1875  was  framed  and  adopted,  and  which  forms 
the  present  organic  law  of  the  State.  This  constitution 
effected  a  change  in  the  tenure  of  office,  and  in  April,  1876, 
the  Governor  and  Lieutenant-Governor  were  re-inaugu- 
rated; but  in  May  Governor  Coke  was  elected  to  the 
United  States  Senate.     He,  however,  continued  to  perform 


288  BENCH  AND  BAR  OF  TEXAS. 

the  duties  of  the  gubernatorial  ofBce  until  December,  and 
on  the  4th  of  March,  1877,  took  his  seat  in  the  Senate,  to 
which  he  has  been  twice  re-elected. 

In  his  second  message  to  the  Legislature  in  January, 
1875,  in  referring  to  the  state  of  affairs  existing  at  the 
time  of  his  first  inauguration  and  the  great  change  wrought 
by  Democratic  policy,  he  said:  "  The  circumstances  under 
which  you  assemble  are  auspicious.  How  striking  the  con- 
trast with  those  which  surrounded  your  first  convention, 
one  year  ago?  Then  darkness  and  gloom  brooded  over 
the  land,  and  over  the  hearts  of  the  people.  Forebodings 
of  danger  to  popular  liberty  and  representative  govern- 
ment caused  the  stoutest  and  most  patriotic  among  us  to 
tremble  for  the  result.  A  conspiracy  bolder  and  more 
wicked  than  that  of  Catiline  against  the  liberties  of  Kome, 
had  planned  the  overthrow  of  free  government  in  Texas. 
The  capital  and  its  purlieus  were  held  by  armed  men  under 
command  of  the  conspirators;  and  the  treasury  and  de- 
partment officers,  with  all  the  archives  of  the  government  were 
in  their  possession.  Your  right  to  assemble  in  the  capitol, 
as  the  chosen  representatives  of  the  people,  was  denied, 
and  the  will  of  the  people  of  Texas  scoffed  at  and  defied. 
The  floors  of  the  halls  in  which  you  now  sit,  had  been  ex- 
amined by  the  conspirators,  and  it  had  been  ascertained 
that  the  armed  forces  entrenched  in  the  basement  beneath 
could  pierce  them  with  their  missils,  if  necessary  to  attack 
you.  The  President  of  the  United  States  was  being  im- 
plored to  send  troops  to  aid  in  overthrowing  the  govern- 
ment of  Texas,  chosen  by  her  people  by  a  majority  of  fifty 
thousand.  The  local  and  municipal  officers  throughout  the 
State,  iii  sympathy  with  the  infamous  designs  of  these 
desperate  and  uiiscinipulous  revolutionists,  taking  courage 
from  the  boldness  of  the  leaders  at  the  capitol,  were  re- 
fusing to  deliver  to  their  lawfully  elected  successors  the 
offices  in  their  possession.  A  universal  conflict  of  juris- 
diction and  authority,  extending  through  all  the  departments 
of  government,  embracing  in  its  sweep  all  the  territory 
and  inhabitants  of  the  State,  and  every  question  upon 
which  legislative  government  is  called  to  act,  was  imminent 


RICHAKD    COKE.  289 

and  impending.  The  treasury  of  the  State  was  bankrupt ; 
even  trust  funds,  protected  by  especial  guarantees  of  the 
Constitution,  had  been  plundered.  The  credit  of  the  State 
was  deeply  dishonored,  and  warrants  on  the  treasury  were 
being  hawked  for  sale  on  the  streets  of  the  capital  at  ruin- 
ous discounts.  All  was  doubt,  suspense  and  anxiety;  and 
Texas  seemed  on  the  verge  of  a  convulsion,  the  consequence 
of  which  no  one  could  foresee,  and  brave  men  trembled  to 
contemplate. 

"  How  changed  the  condition  now  !  All  is  bright,  hopeful 
and  cheering.  Free  government  is  established;  the  sov- 
ereign rights  of  the  people  vindicated  ;  public  confidence 
restored;  State  credit  redeemed;  official  accountability 
recognized  and  enforced ;  the  country  prosperous  and  the 
people  contented.  While  much  remains  to  be  done  in  the 
solution  of  the  great  questions  of  race,  education,  mon- 
opoly and  taxation,  and  many  evils  entailed  by  former 
maladministration,  as  well  as  those  that  were  inevitable  se- 
quences of  the  great  social  and  political  revolution  through 
which  we  have  passed,  still  remain  with  us  ;  yet  the  operations 
of  our  governmental  system  are  healthy  and  steady,  and  in 
due  time,  with  the  lights  which  experience  and  a  more  inti- 
mate knowledge  of  the  subjects  to  be  dealt  with,  will  throw 
upon  them  at  each  step  of  its  progress,  I  have  no  fears 
that  a  solution  of  them  in  accordance  with  correct  princi- 
ples and  good  government,  and  in  the  interest  of  humanity 
and  progress  will  be  evolved,  and  that  abuses  in  adminis- 
tration and  errore  of  legislation  will  be  corrected  and  re- 
formed. Abuses  which  have  taken  deep  root,  and  errors 
which  have  been  sanctioned  by  years  of  acquiescence,  can  not 
be  eradicated  and  cured  in  a  month  or  a  year.  A  State  which 
has  been  rocked  with  the  throes  of  revolution  for  twelve 
years,  whose  society,  laws  and  institutions  have  been  un- 
settled and  in  a  great  measure  overturned,  can  not,  in  a 
short  period,  be  adjusted  in  its  new  relations,  so  that  its 
machinery  of  government  will  run  smoothly,  witliout  jarring 
or  attrition.  Time  is  necessary  after  the  health  of  the  bod}' 
politic  is  restored,  to  do  this,  to  fit  the  parts  to  each  other, 
and  to  adapt  the  whole  to  the  new  conditions  of  society. 

19 


21)0  BENCH    AND    BAR    OF    TEXAS. 

An  impatient  and  unreasoning  expectation  of  immediate 
and  thorough  reform  in  government,  upon  a  change  in  ad- 
ministration, after  a  long  period  of  misrule  and  unrest, 
before  a  policy  can  be  developed  and  bear  its  legitimate 
fruits,  will  always  meet  disappointment.  The  people  of 
Texas  have  their  government  in  their  own  hands,  and  its 
excellence  will  depend  upon  their  wisdom. 

"  Looking  be3'^ond  the  workings  of  our  own  State  govern- 
ment, the  present  prosperity  and  splendid  future  of  Texas, 
into  the  broader  field  occupied  by  the  National  government, 
we  find  abundant  evidence  in  the  recent  unprecedented  up- 
rising of  the  American  people,  that  there,  too,  the  great 
work  of  reform  has  commenced,  —  let  us  hope,  to  be  pros- 
ecuted until  honest,  economical  administration,  inside  of 
the  limitations  of  the  Constitution,  under  jnst  and  equal 
laws  is  attained;  until  the  machinery  of  the  Federal  gov- 
ernment is  no  longer  used  to  stir  up  strife  and  conflict  in 
the  States,  and  create  necessities,  real  or  fancied,  for  Fed- 
eral intervention  in  affairs  of  purely  local  concern,  and  the 
moral  and  intellectual  forces  in  each  State  are  '  let  alone  ' 
to  contend,  without  outside  interference,  for  the  mastery  in 
directing  and  controlling  its  government ;  until  gunboats  and 
battalions  shall  no  longer,  under  the  Federal  flag,  menace 
American  cities  and  the  lives  and  liberties  of  American 
citizens ;  and  free  suffrage  is  not  intimidated  and  overawed 
on  pretexts  invented  and  brought  about  by  Federal  agents  ; 
until  American  citizens  are  protected  in  their  lives  and 
property  against  foreign  desperadoes,  robbers  and  thieves, 
and  a  corrupt  Indian  ring  ceases  to  fatten  on  the  blood  and 
toil  of  the  frontier ;  until  the  burdens  of  government  shall 
rest  equally,  according  to  wealth  and  population,  upon 
every  section  of  the  Union,  and  capital  and  monopoly  shall 
cease  to  be  the  ruling  power  of  this  government ;  until 
rings  and  combinations  shall  no  longer  be  permitted  to 
plunder  the  treasury  and  manipulate  the  policy  of  the  gov- 
ernment to  their  advantage,  and  official  accountability  and 
integrity  is  restored;  until  the  farmer  and  producer  is 
emancipated  from  thraldom  to  the  manufacturer  and  capi- 
talist, and  labor  meets  its   legitimate  reward ;  until  each 


RICHARD    COKE.  291 

State  in  the  Union  is  recognized  as  the  equal  of  any  other 
State,  and  all  share  alike  in  the  benefits  of  a  common  srov- 
ernment,  while  none  shall  bear  more  than  its  just  share  of 
the  burdens;  until  the  Constitution  shall  be  the  supreme 
law  for  all  the  States,  South  as  well  as  North,  for  Lou- 
isiana and  Massachusetts  alike,  and  the  national  flag  shall 
symbolize  to  the  people  of  both  the  beneficence  as  well  as 
the  power  and  greatness  of  the  republic,  and  shall  equally 
challenge  their  admiration  and  affections ;  and  last,  and 
above  all,  until  the  people  of  the  States  of  the  South  can 
feel,  as  it  is  the  most  earnest  desire  of  their  hearts  to  feel, 
that  they,  too,  have  an  interest  in  the  common  government, 
a  pride  in  its  greatness  and  glory,  a  joy  in  its  prosperity, 
a  destiny  wrapped  in  its  perpetuity,  and  in  it  an  inheritance 
for  their  children,  rich  and  priceless. 

"  The  late  popular  manifestations  point  to  these  as  possible, 
even  probable,  results  in  the  near  future.  We  think  we  see 
in  this  great  revolution  in  which  the  people  have  thrown 
down  and  trampled  upon  their  former  leaders,  the  begin- 
ning of  a  real  union,  a  new  reconstruction,  not  devised  by 
crafty,  heartless  and  corrupt  politicians,  in  the  interest  of 
party  and  based  on  revenge  and  sectional  hate ;  not  written 
in  statute  or  covenant,  but  welling  up  from  the  hearts  of 
the  people.  North,  East,  South  and  West,  prompted  by 
love  of  country,  of  liberty  and  of  free  government,  and  by 
a  recognition  of  the  perils  which  surround  them,  to  which 
they  have  just  been  awaked  —  a  reconstruction  cemented 
by  a  broad  and  comprehensive  patriotism,  including  all  the 
States  with  all  their  people,  which,  forgetting  the  past, 
remembers  only  that  we  are  now  citizens  of  a  common 
country,  bound  in  a  common  destiny  and  menaced  with  a 
common  danger.  Such  reconstruction  means  peace,  recu- 
peration, building  up,  fresh  energy  and  renewed  hopes  of  a 
bright  future  for  the  South,  home-rule  for  all  the  States, 
honest  constitutional  government  for  the  Union,  and  pros- 
perity and  common  brotherhood  for  the  people.  While 
standing  unyielding  by  the  principles  of  government  we  be- 
lieve to  be  correct,  and  maintaining  inviolate  the  faith  that 
is  in  us,   we  should  put  our  feet   upon  every  narrow    and 


292  BENCH  AND  BAR  OF  TEXAS. 

sectional  feelinor,  and  embrace  in  our  efforts  and  aspirations 
the  glory  and  advancement  of  the  whole  country." 

These  sentiments  are  peculiarly  applicable  to  the  political 
revolution  of  1884,  and  seem  to  have  been  uttered  with  the 
inspirations  of  prophecy.  The  streak  of  light  which  he 
saw  stretched  along  the  political  horizon  in  1874,  has 
spread  itself  over  the  national  sky,  and  it  is  well  that  he 
occupies  a  position  in  which,  as  the  representative  of  his 
people,  he  can  place  the  seal  of  their  devotion  upon  the 
happy  sequences  of  the  consummation.  As  a  United  States 
Senator  he  has  been  true  and  faithi'ul  to  the  interests  of  his 
party  and  his  people,  constant  in  his  efforts  to  promote  the 
public  welfare,  and  able  in  the  advocacy  of  the  principles 
whose  triumph  has  burnished  the  hopes  and  illuminated  the 
prospects  of  the  American  Union. 

His  mental  organization  is  of  a  high  order  and  his  pro- 
fessional learning  is  thorough.  His  arguments  and  de- 
cisions evince,  both  in  exposition  and  research,  the  qualities 
of  a  profound  lawyer  and  able  judge,  and  are  impressive 
of  some  of  the  most  important  features  in  Texas  jurispru- 
dence. Among  these  is  his  decision  in  the  case  of  Stroud 
V.  Springfield,  28  Texas,  649,  in  which  he  describes  the  neces- 
sary qualities  and  merits  of  ancient  deeds,  and  the  evidence 
required  to  establish  old  landmarks  and  boundaries  of  sur- 
veys. Old  deeds  and  field  not-es  of  surveys  must  be  free  from 
suspicion,  must  come  from  the  proper  custody,  and  must 
have  been  acted  upon,  in  order  to  give  them  a  genuine 
character  and  the  merit  of  evidence.  These  questions  are 
discussed  with  great  ability,  and  this  decision  should  be 
studied  and  learned  by  every  settler  and  land-owner  in  the 
State. 

Viewed  from  whatever  standpoint,  in  every  sphere  of  his 
life,  as  governor,  judge,  senator  or  citizen.  Senator  Coke 
is  one  of  the  most  eminent  of  Texans.  As  a  lawyer  and 
statesman  he  has  but  few  superiors  in  the  country,  and  as 
a  patriot,  none. 


JAMES    H.   BELL.  293 


James  H.  bell. 


James  Hall  Bell  was  born  in  the  town  of  Columbia, 
Brazoria  County,  Texas,  on  the  21st  of  January,  1820. 
His  father,  Josiah  H.  Bell,  was  a  native  of  Kentucky,  and 
was  one  of  the  first  of  Austin's  colonists.  He  enjoyed  the 
highest  confidence  and  esteem  of  the  famous  pioneer,  and 
when  Austin  went  to  the  City  of  Mexico  in  1822  to  obtain 
a  confirmation  of  his  empressario  grant  from  the  Mexican 
government,  which  had  just  thrown  off  the  Spanish  yoke, 
he  left  the  aflairs  of  the  colony  in  the  hands  of  Mr.  Bell. 
During  bis  long  absence,  which  was  constrained  by  the 
conflicting  factions  at  the  Mexican  capital,  the  spirits  of  the 
colonists  became  greatly  depressed,  and  in  consequence  of 
a  general  feeling  of  insecurity,  many  of  them  abandoned 
the  country  and  returned  to  the  States.  But  the  devoted 
energy  and  firmness  of  Mr.  Bell,  who  had  also  been 
appointed  an  alcalde  by  Governor  Trespalacios,  maintained 
the  colonial  organization  until  Austin's  return,  after  beinff 
a  year  absent.     He  died  in  1838. 

James  H.  Bell  was  educated  at  Bardstown,  Kentucky, 
where  for  several  years  he  enjoyed  excellent  advantages, 
and  on  returning  to  Texas  began  the  study  of  law  in  the 
oflSce  of  William  H.  Jack,  in  Brazoria  County.  In  1843  he 
went  to  Cambridge  University,  Massachusetts,  and  com- 
pleted his  education  in  the  law  department  of  that 
institution. 

In  1847  he  entered  upon  the  practice  of  his  profession 
in  Brazoria  County,  and  in  1852  was  elected  judge  of  the 
District  Court.  He  held  this  position  until  his  election  to 
the  Supreme  Bench  in  1859,  and  won  the  reputation  of 
being  an  eflBcient,  just  and  able  judge.     He  held  the  office 


294  BEfJCH    AND    BAll    OF    'PTXAS. 

of  associate  justice  of  the  Supreme  Court  until  1864,  when, 
at   the  expiration  of    his  term,  he  resumed  his   practice. 

Judge  Bell  performed  an  eminent  service  for  his  people 
during  the  troubles  which  occurred  upon  the  election  of 
Governor  Coke  to  succeed  E.  J.  Davis.  The  latter  called 
upon  General  Grant  for  aid,  and  invoked  the  presence  of 
Federal  troops  to  maintain  himself  in  the  gubernatorial 
chair.  Judge  Bell  proceeded  immediately  to  Washington, 
and  stated  to  the  authorities  the  true  state  of  affairs,  and 
in  consequence  of  his  reputation,  the  influence  of  his  per- 
sonal qualities,  and  the  manifest  sincerity  and  truth  of  the 
views  he  presented,  the  President  declined  to  interfere. 

During  the  last  two  or  three  years  he  has  been  engaged 
chiefly  in  mining  operations  in  Mexico,  and  is  at  present  in 
London  for  the  purpose  of  promoting  these  enterprises. 

As  a  lawyer  Judge  Bell  is  thorough  and  varied  in  his  ac- 
complishments. He  is  familiar  with  all  the  principles  of 
legal  science  ;  and  as  a  judge  he  was  an  excellent  expositor 
of  legal  principles,  quick  to  discover  the  true  course  of  law 
and  justice,  and  no  less  vigorous  in  pursuing  it.  These 
features  eminently  characterize  his  reported  decisions,  and 
their  lucid  determination  of  the  questions  they  involve  will 
always  render  them  important  and  leading  in  the  jurispru- 
dence of  the  State.  His  personal  attributes  are  no  less 
marked  than  his  professional.  He  is  kind,  courteous  and 
social ;  and  the  same  personal  qualities  which  crowned  with 
success  his  voluntary  diplomacy  at  Washington  in  the  in- 
terest of  his  people,  assert  ^emselves  in  the  merited  es- 
teem of  his  friends,  neighbors,  and  fellow-citizens. 


A.  H.  WILLIE.  205 


A.    H.    WILLIE. 


Asa  Hoxie  Willie,  chief  justice  of  the  Supreme  Court  of 
Texas,  is  a  native  of  Georgia,  and  was  born  in  Wilkes  County 
on  the  11th  day  of  October,  1829.  His  father,  James  Willie, 
was  a  native  of  Vermont,  and  bis  mother  was  a  daughter  of 
Asa  Hoxie,  a  Quaker  of  Barnstable,  Massachusetts.  After 
the  death  of  his  father,  in  1833,  his  nurture  and  training  de- 
volved entirely  upon  his  mother,  and  his  education  depended 
upon  her  exertions  and  the  prudent  management  of  her 
limited  means;  but  she  was  a  woman  of  energy  and  deter- 
mination and  devoted  herself  to  the  task  with  all  the  fond- 
ness and  fidelity  of  maternal  affection  and  womanly  virtue. 
Withher  his  education  began  and  she  promoted  it  with  untir- 
ing zeal  and  self-sacrificing  exertion,  not  only  in  directing 
his  intellectual  development,  but  in  cultivating  the  feelings, 
aspirations  and  sentiments  which  determined  the  qualities  of 
his  character.  The  history  of  distinguished  men  in  every 
age  of  the  world  teems  with  tributes  of  gratitude  and  ven- 
eration to  the  influence  and  memory  of  noble  mothers  — 
the  work  accomplished  by  the  hallowed  benisons  of  mater- 
nal devotion,  and  Judge  Willie  owes  his  success  in  life  to 
the  same  inspiring  source. 

He  was  educated  at  the  academy  at  Washington,  Georgia, 
and  while  the  slender  means  of  his  mother  would  not  permit 
her  to  give  him  the  advantages  of  a  collegiate  course,  he  re- 
ceived the  best  education  that  an  excellent  high  school 
could  afford,  and  in  1846  removed  to  Texas  and  located  in 
the  family  of  his  maternal  uncle.  Dr.  Asa  Hoxie,  who  re- 
sided near  Independence,  in  Washington  County.  In  1847 
he  began  the  study  of  law  in  the  office  of  his  elder  brother, 
James  Willie,  at  Brenham,  and  in  1849  was  admitted  to  the 
bar  before  he  had  attained  the  age  of  twenty-one  years,  by 


296  BENCH  AND  BAR  OF  TEXAS. 

authority  of  a  special  act  of  the  Legislature,  and  commenced 
the  practice  of  law  in  copartnership  with  his  brother. 

His  thorough  training  and  energy  soon  asserted  them- 
selves, he  rose  rapidly  in  his  profession,  and  in  August, 
1852,  was  elected  attorney  for  the  Third  Judicial  District, 
which  at  that  time  comprised  the  counties  of  Washington, 
Burleson,  Milam,  Bell,  MeLennon,  Falls,  Limestone,  Free- 
stone, Lee,  Robertson  and  Brazos,  and  at  the  expiration  of 
his  term   resumed  his  general  practice. 

In  1857  he  removed  from  Brenham  to  Austin,  and  per- 
formed the  duties  of  Attorney-General,  whilst  his  brother, 
who  at  that  time  held  that  office,  was  indexing  the  criminal 
cbdes  and  supervising  their  pnblication,  a  service  to  which 
he  had  been  appointed  by  the  Governor  prior  to  his  election. 
In  1858  he  removed  to. Marshall,  Texas,  and  formed  a  co- 
partnership with  Col.  Alexander  Pope,  his  sister's  husband 
which  continued  until  he  was  promoted  to  the  bench. 

During  the  political  agitation,  which  culminated  in  the 
civil  war,  his  sympathies  were  strongly  enlisted  on  the  side 
assumed  by  his  native  and  adopted  State,  and  when  hostilities 
began  he  promptly  volunteered  his  services,  and  took  a 
position  on  the  staff  of  General  Gregg,  with  whom  he 
served  until  the  death  of  that  o:allant  officer. 

In  June,  1866,  he  was  elected  associate  justice  of  the 
Supreme  Court.  The  other  members  of  the  court,  electe(i 
at  the  same  time,  were  George  F.  More,  Richard  Coke 
George  W.  Smith  and  S.  P.  Donley,  all  of  whom  were 
removed  in  1867  by  the  military  authority,  which  during 
that  year  was  placed  in  command  of  all  the  departments  of 
the  State  government.  Judge  Willie  then  removed  to 
Galveston,  and  formed  a  copartnership  with  Judge  T.  F. 
Crosby,  and  afterwards  with  Judge  C.  L.  Cleveland.  On 
the  recovery  of  the  control  of  the  State  by  the  people  in 
1872,  he  was  elected  a  representative  at  large  for  Texas  in 
the  Congress  of  the  United  States,  and  at  the  expiration  of 
his  term  declined  are-election,  and  returned  to  his  practice. 
In  November,  1882,  he  was  elected  chief  justice  of  the 
Supreme  Court  of  Texas  by  the  largest  vote  ever  given 
to  any  candidate  in  the  State. 


A.  H.  WILLIE.  297 

While  wearing  the  manners  of  an  apparently  cold  and 
stern  exterior,  he  is  a  kind-hearted,  sympathetic  man,  and 
there  are  few  men  in  Texas  who  have  more  devoted  friends. 
This,  together  with  his  known  ability,  accounts  for  the 
hearty  support  which  he  has  received  for  the  most  impor- 
tant positions,  and  the  high  office  he  now  holds.  He  was 
married  in  1859  to  an  estimable  lady,  Miss  Bettie  Johnson, 
of  Brandon,  Mississippi,  a  step-daughter  of  William  C. 
Harper,  a  lawyer  of  that  place,  and  has  a  large  fiimily  of 
children. 

With  a  strong  mental  organization,  combined  with  great 
physical  endurance,  the  former  trained  to  the  constant  ten- 
sion of  intense  study,  and  the  latter  cultured  by  a  uniform 
moral  regimen,  Judge  Willie  is  capable  of  great  intellectual 
labor,  and  never  wearies  in  his  search  for  the  proper  solution 
of  every  question  which  calls  for  the  exercise  of  his  judg- 
ment. He  loves  his  profession  with  the  fervor  of  a  devotee, 
and  has  vigorously  employed  a  remarkable  energy  and 
industry  in  the  attainment  of  a  mastery  of  the  great  prin- 
ciples of  law  in  all  their  bearing  and  application.  He 
possesses  all  the  qualities  and  characteristics  of  an  excellent 
judge,  and  his  decisions  are  of  the  highest  order  of  judicial 
exposition.  His  arguments  show  that  he  invariably  mastered 
the  elements  of  his  cases,  both  as  to  the  law  and  the  facts 
which  compose  their  merits,  before  he  went  into  their  trial ; 
and  they  evince  another  quality  exemplary  in  the  highest 
degree,  and  one  which  never  fails  in  the  end  to  win  the 
confidence  and  respect  of  courts  and  juries  and  the  highest 
laurels  of  success.  He  never  urges  a  point  of  law  which  is 
not  well  taken  and  supported  by  authority  and  reason,  and 
never  asserts  a  fact  that  the  evidence  does  not  sustain. 

These  traits  which  gained  him  popularity  and  success  at 
the  bar,  develope  themselves  on  the  bench  in  a  sense  of 
justice,  candor  and  conscience,  and  a  purely  judicial  treat- 
ment of  a  question,  which  constitute  the  highest  qualities 
of  a  judge.  As  a  lawyer  he  strikes  straight  and  full  in 
front  at  the  crest  of  opposition,  and  as  a  judge,  straight  at 
the  merits  of    the  case.     Uutan^lino:  the  webs  of  circum- 


298  BENCH  AND  BAR  OF  TEXAS. 

stance,  he  twines  the  cable  of  truth  from  the  pure  elements 
of  law  and  fact ;  and  while  the  grounds  of  all  his  opinions 
are  clearly  defined,  many  of  them  are  models  of  logical 
reasoning. 

His  decisions  are  numerous,  and  many  of  them  have 
largely  shaped  the  present  status  of  Texas  jurisprudence. 
The  following  cases  contain  principles  of  first  impression, 
and  are  selected  on  account  of  the  ability  of  the  opinions  :  — 

G.  H.  &YL.  Railway  Co.  v.  Allison,  59  Texas,  193  — A 
carrier  undertaking  to  transport  goods  to  a  certain  destina- 
tion can  not  contract  for  a  limitation  of  his  responsibility 
to  a  portion  of  the  route,  and  any  deviation  in  the  route  or 
mode  of  conveyance  from  those  specified  in  the  agreement, 
made  at  any  point  during  the  transportation,  will  preclude 
him  from  the  benefit  of  any  stipulations  against  liability. 

Schneider  &  Bro.  v.  Bray,  lb.  668  —  Notwithstanding 
the  principle  that  when  property  exempted  from  execution 
is  voluntarily  exchanged  for  a  species  which  is  not  exempted, 
the  exemption  is  lost,  the  beneficent  object  of  the  law  in 
regard  to  homesteads  can  not  thus  be  defeated,  and  one 
homestead  may  be  exchanged  for  another  and  the  exemption 
will  attach  to  the  newly  acquired  home. 

Franco-Texas  Land  Co.  v.  Saigle,  lb.  339  —  A  charter 
granting  to  a  corporation  the  right  to  transact  business  be- 
yond the  limits  of  the  State  creating  it,  confers  the  power 
of  performing  only  such  acts  as  are  usually  done  through 
/  directors  and  agents,  and  not  the  capacity  to  exercise  cor- 
/  porate  functions.  Hence,  persons  chosen  as  directors  at  an 
election  held  beyond  the  limits  of  the  State  which  gave  it 
existence  are  not  de  jure  oflScers  of  the  corporation. 
Neither  are  they  de  facto  officers,  for  that  quality  can  be 
derived  only  from  a  colorable  right  impaired  by  informality 
or  irregularity  in  the  appointment,  otherwise  the  bold  asser- 
tions of  a  mere  usurper  could  not  be  questioned. 

G.  H.  &  S.  A.  Railway  Co.  v.  Temple — An  employe 
assumes  all  the  risks  ordinarily  incident  to  his  business,  and 
if  he  goes  into  service  or  continues  in  it  knowing  that  the 
nature  or  instrumentalities  of  his  labor  are  unsafe  and  dan- 


A.  H.  WILLIE.  299 

gerous,  the  employer  is  not  liable  for  any  injuries  he  may 
receive ;  but  if  the  danger  from  defective  machinery  is  not 
apparent  the  master  is  liable. 

Hildebrand  v.  McMahan,  lb.  450  —  The  constitution  vests 
in  the  District  Courts  exclusive  jurisdiction  over  the  en- 
forcement of  all  liens  created  by  the  act  of  the  parties, 
but  not  over  those  effected  by  operation  of  law  and  the 
foreclosure  of  which  follows  as  a  matter  of  right  without 
the  intervention  of  a  verdict.  Over  the  latter  justices  of 
the  peace  have  concurrent  power  within  the  limits  of  their 
jurisdiction. 

T.  &P.  Railway  Co.  v.  McAllister,  lb.  349  —  A  petition  to 
remove  a  cause  from  the  District  Court  of  a  State  to  the 
Circuit  Court  of  the  United  States  possesses  the  character  of 
a  plea,  and  the  State  court  has  the  power  to  determine  the 
sufficiency  of  its  merits  and  refuse  it,  if  found  inadequate 
and  a  mere  pretext  for  delay  or  change  of  jurisdiction. 

Erwin  v.  Blanks,  60  Texas,  583  —  The  conflicting  clauses 
ill  the  Constitution  which  fix  the  same  amount  as  the  maxi- 
mum of  the  jurisdiction  of  the  County  Court  and  the  mini- 
mum of  the  jurisdiction  of  the  District  Court  vest  the  two 
courts  with  concurrent  jurisdiction  over  the  common  amount 
unless  it  be  involved  in  the  trial  of  the  right  of  property 
levied  on  by  a  writ  of  execution,  sequestration  or  attach- 
ment; in  this  case  the  jurisdiction  is  specially  conferred 
upon  the  District  Court. 

Carter  and  Rusk  v.  Conner  et  al.  lb.  52. —  Marital  rela- 
tions in  Texas  have  been  assimulated  in  many  respects  to 
ordinary  partnerships,  and  a  suit  against  the  survivor  may 
subject  community  property  to  the  payment  of  community 
debts  without  making  the  heirs  of  the  deceased  husband,  or 
wife,  parties  to  the  action. 

Splawn  V.  Chew,  lb.  532 — When  a  person  insures  his 
life  for  the  benefit  of  other  persons,  he  has  no  power  to  as- 
sign the  policy,  or  change  the  beneficiaries,  unless  he  has 
contracted  with  the  insurer  for  the  reservation  of  that 
right;  in  that  case  the  polic}^  will  be  interpreted  as  other 
authorized  contracts,  and  the  law  will  respect  the  exercise 
of  the  reserved  control. 


/ 


300  BENCH  AND  BAR  OF  TEXAS. 

Ezell  V.  Dotlson,  lb.  331  —  A  married  woman  cau  not  by 
virtue  of  living  separate  and  apart  from  her  husband  and 
his  refusal  to  join  her,  bring  an  action  to  recover  damages 
for  an  assault  and  battery  committed  upon  her  during  cov- 
erture. The  only  instance  in  which  she  can  maintain  an 
action  for  community  property  without  the  joinder  of  her 
husband  is  when  he  has  abandoned  her  and  left  her  depend- 
ent upon  that  property  for  support. 

Jones  V.  Jones,  lb.  455  —  In  Texas  the  District  Courts  can 
decree  divorces  between  bona  fide  residents  for  causes  aris- 
ing beyond  the  limits  of  the  State,  and  it  is  not  necessary 
that  the  acts  should  be  alleged  with  the  certainty  of  an  in- 
dictment, notice  of  the  charges  being  sufficient ;  and  the 
laws  of  Texas  hold  an  imputation  of  unchastity  to  be  a 
sufficient  cruelty  to  justify  a  dissolution  of  the  bonds  of 
matrimony,  justly  considering  wounds  affecting  the  mind 
and  character  to  be  more  intolerable  than  those  inflicted 
upon  the  person. 

McCue  V.  Blair,  lb.  169 — If  a  person  whose  mental  fac- 
ulties are  suspended  by  intoxication  be  induced  to  swallow 
/spirituous  liquors  to  such  excess  as  to  endanger  his  life,  the 
persons  taking  advantage  of  his  helpless  condition  and  men- 
tal darkness  and  imposing  the  draught  upon  him  must  answer 
to  him  in  damages  for  the  injury  that  ensues,  and  to  his 
family  if  his  death  should  be  the  result. 

Seligson  &  Co.  v.  Brown  &  Brown,  61  Texas,  180  — 
An  insolvent  debtor  can  not  exchange  property  liable  to  be 
subjected  to  the  payment  of  the  claims  of  his  creditors  for 
that  which  is  beyond  their  reach,  and  thus  in  place  of  cer- 
tainty substitute  a  mere  chance  payment  depending  upon 
his  own  discretion  and  convenience,  for  that  would  destroy 
all  check  upon  fraudulent  conveyances. 

McKamey  v.  Thorp  et  al.,  lb.  648 — When  property  is 
purchased  with  money  belonging  to  the  wife,  and  the  con- 
veyance is  not  made  for  her  use  and  benefit,  and  contains 
no  indication  of  her  ownership,  the  legal  title  is  lodged 
in  the  community  of  herself  and  husband,  but  a  resulting 
trust  arises  in  her  favor,  and  she  is  the  equitable  owner  of 
the  property.     The  registration  laws  which  render  all  un- 


A.  H.  WILLIE.  301 

[•ecorded  conveyances  void  as  against  subsequent  purchasers 
for  value  without  notice,  do  not  apply  to  resulting  trusts, 
IS  this  equity  can  not  be  spread  upon  the  record,  and  the 
3quity  of  the  wife  is  not  affected  by  an  execution  sale  under 
1  judgment  against  the  husband,  although  the  purchaser 
tiad  no  notice  of  the  resulting-  trust. 

Willis  V.  Missouri  Pacific  Eailway  Company,  Ih.  432  — 
A.  State  can  not  give  to  its  laws  an  extra-territorial  effect. 
When  an  action  is  transitory  and  is  based  on  personal  in- 
juries recognized  by  universal  law  it  may  be  brought 
ivherever  the  aggressor  is  found,  but  statutory  actions 
must  be  brought  in  the  State  in  which  the  statute  exists 
and  the  injury  occurred. 


302  BENCH  AND  BAR  OF  TEXAS. 


Thomas  J.  Devine. 


Thomas  J.  Devine  was  born  of  Irisfi  parentage  in  Hali- 
fax, Nova  Scotia,  on  the  28th  of  February,  1820.  His 
early  opportunities  for  an  education  were  liberal,  and  in 
addition  to  his  English  studies  he  acquired  considerable 
proficiency  in  the  Latin  and  French  languages  ;  but  he  was 
thrown  in  early  life  upon  his  own  resources,  and  when  but 
fifteen  years  of  age  emigrated  to  Florida  and  engaged  as  a 
clerk  in  a  mercantile  house  in  Tallahassee ;  but  his  genius 
and  aspirations  found  no  congenialty  in  the  mental  re- 
straints and  fettering  routine  of  a  life  of  trade.  The 
cravings  of  his  mind  and  the  soaring  flights  of  his  youthful 
ambition  impelled  his  exertions  to  reach  a  more  compati- 
ble sphere,  and,  in  1838,  he  began  the  study  of  law  in  the 
office  of  Truxton  Davis,  a  prominent  lawyer  of  Woodville, 
Mississippi.  In  1840  he  went  to  Lexington,  Kentucky, 
where  he  continued  his  studies  and  attended  lectures  in  the 
law  department  of  Transylvania  University,  in  which  he 
graduated  in  1843  and  obtained  his  license  to  practice  from 
the  Supreme  Court  of  Kentucky.  During  the  same  year 
he  emigrated  to  Texas  and  located  at  La  Grange,  in  Fayette 
County,  in  a  society  composed  of  hetrogeneous  elements, 
and  exposed  to  Mexican  and  Lidian  depredations.  This 
unsettled  state  of  aifairs  was  repugnant  to  his  cultured 
taste  and  studious  habits,  and  he  soon  afterwards  removed 
to  San  Antonio,  where  he  established  his  law  office,  and  has 
ever  since  resided  there.  Here  he  entered  at  once  upon  a 
successful  professional  career,  and  soon  acquired  a  high 
reputation  as  an  able  and  thorough  lawyer.  In  1844 
he  was  elected  city  attorney,  and  held  that  office 
by  successive  re-election  until  1851,  when  he  was 
elected    district     judge    of   the    Bexar  district.     He    was 


THOMAS    J.  DEVINE.  303 

re-elected  to  the  bench  in  185fi,  and  held  his  posi- 
tion until  the  outbreak  of  the  civil  war.  He  was  a  lead- 
ing member  of  the  Texas  Secession  Convention  of  1861, 
and  was  appointed  one  of  the  committee  of  public  safety 
to  confer  with  General  Twiggs,  the  commander  of  the 
United  States  troops  in  Texas,  and  to  demand  the  surrender 
of  all  government  arms,  ammunition  and  military  stores,  and 
the  immediate  removal  of  the  Federal  troops  from  the 
State.  This,  in  conjunction  with  two  other  gentlemen  of 
the  committee,  he  accomplished  with  the  skill  of  a  thorough 
deplomatist,  and  received  the  commendation  and  thanks  of 
the  Convention.  Being  an  ardent  devotee  and  supporter 
of  the  Southern  cause,  and  a  lawyer  of  eminent  ability,  he 
was  soon  afterwards  appointed  Confederate  States  judge  for 
the  Western  District  of  Texas.  The  functions  of  this  office, 
though  necessarily  limited  in  extent  and  application  during 
the  time  of  war,  he  performed  with  the  utmost  fidelity,  and 
with  a  view  of  the  imi^ortance  of  putting  the  machinery  of 
the  new  court  in  proper  motion.  In  1863  his  admirable 
qualities  of  statesmanship  and  knowledge  of  international 
law  was  again  called  into  requisition.  At  the  request  of 
General  E.  Kirby  Smith,  he  proceeded  to  the  City  of 
Mexico,  and  succeeded  in  arranging  amicably  the  threatened 
troubles  between  the  Mexican  government  and  the  Confed- 
erate States.  In  1864  there  was  great  dissatisfaction  in 
Texas,  in  consequence  of  the  conscript  law  and  the  embaro^o 
laid  by  the  Confederate  government  upon  the  trade  between 
Texas  and  Mexico,  and  serious  troubles  were  threatenincr  to 
arise  between  the  government  of  the  State  and  the  Confed- 
eracy, but  the  patriotism,  ability  and  pacific  qualities  of 
Judge  Devine  arrested  all  evil,  and,  having  promptly  re- 
paired to  General  Smith's  headquarters,  in  Arkansas,  he 
arranged  the  whole  matter  amicably  and  satisfactorily  to  all 
parties. 

Thus  as  a  judge  and  peace-maker  this  good  man  united 
in  his  person  and  in  his  office,  the  noblest  qualities  of  a 
citizen  and  patriot,  and  rendered  to  his  country  the  happiest 
of  all  services  —  the  promotion  of  unity  and  concord,  and 


304  BENCH    AND    HAIi    OF    TEXAS. 

the  concentration  of  its  powers  tind  energies  against  the 
common  enemy. 

At  the  termination  of  the  war,  he  saw  no  hope  for  his 
country  through  the  ck)uds  which  settled  over  it,  and  took 
up  his  abode  in  Mexico;  but  Texas  was  his  home,  to  her 
he  owed  all  that  he  was,  or  had  been,  and  his  heart  was 
chained  to  her  destiny.  He  returned  to  San  Antonio 
within  a  few  months  ;  but  his  known  ability,  prominence  and 
influence  as  a  Southerner,  drew  upon  him  tlie  shafts  of  re- 
venge, and  he  was  arrested  by  the  Federal  authorities  and 
incarcerated  in  Fort  Jackson,  at  the  mouth  of  the  Mississippi, 
where  he  was  confined  four  months.  He  was  finally  released 
bv  his  sivins:  bond  that  he  would  confine  his  residence  to 
San  Antonio,  a  duress  and  restraint  which  was  virtually  an 
imprisonment.  Here  vengeance  still  pursued  him  and  he 
was  twice  indicted  for  high  treason,  being  the  only  person 
in  the  South,  except  Mr.  Jefl'erson  Davis,  who  received  that 
notoriety.  But  having  quieth%  yet  defiantly,  resumed  the 
practice  of  his  profession,  he  placidly  awaited  the  abate- 
ment of  the  storm,  and  w\atched  with  anxious  gaze  the 
social  and  political  wreck  which  it  left  in  its  pathwa}'. 

In  1873  he  was  appi)inted  by  Governor  Coke  an  associate 
justice  of  the  Supreme  Court  of  Texas,  but  after  a  short 
but  eminent  career  upon  the  bench  he  found  that  the  duties 
of  the  bar,  which  he  had  so  long  cultivated  and  cherished, 
were  more  congenial  to  his  taste  as  w'ell  as  far  more  remu- 
nerative, and  in  1875  he  resigned  and  returned  to  his 
practice  in  San  Antonio,  which  he  has  since  pursued  with 
vigor  and  uninterrupted  devotion;  and  with  the  exception 
of  being  a  prominent  candidate  for  Governor  in  1878,  he 
has  declined  to  permit  his  name  to  be  used  in  connection 
with  any  political  otfice. 

Judge  Devine  is  considered  one  of  the  ablest  lawyers  at 
the  Texas  bar.  He  is  a  man  of  intellectual  vigor  and 
superior  mental  endowments,  and  while  he  possesses  much 
of  the  humorous  vivacity  and  spontaneous  repartee  charac- 
teristic of  his  parentage  and  the  race  from  which  he  sprung, 
candor  and  sincerity  are  ruling  traits  of  his  character.     He 


THOMAS    J.  DEVINE.  305 

is  patient  and  thorough  in  his  investigations  and  an  excel- 
lent legal  counselor.  His  uniform  courtesy  and  placid 
disposition  and  his  aptness  on  proper  occasions  to  adorn 
with  good-natured  jest  the  dull  and  monotonous  features  of 
legal  argument  render  him  an  engaging  advocate,  and  give 
him  great  power  before  a  jury,  while  his  oratory,  embellished 
with  the  most  captivating  qualities,  often  rises  to  the  highest 
l)lain  of  elocution. 

As  a  judge  his  decisions  are  characterized  by  an  independ- 
ence of  judgment,  and  a  freedom  from  the  restraints 
of  doubtful  precedent,  that  commend  them  to  the  practi- 
tioner as  the  emanations  of  profound  learning,  thorough 
research,  and  conscientious  conviction.  He  held  the  scales 
of  justice  in  even  balance,  and  no  feature  of  wrong,  how- 
ever speciously  attired,  could  disturb  the  equitable  poise. 
His  judgments  fixed  upon  the  firm  basis  of  law  and  right 
yielded  only  to  the  dictates  of  mercy. 

In  private  life  Judge  Devine  possesses  the  noblest  quali- 
ties. Kind,  charitable  and  public-spirited,  he  is  always 
ready  to  respond  to  every  meritorious  demand  as  a  friend, 
as  a  ueio;hbor  and  as  a  citizen. 


306  BENCH  AND  BAR  OF  TEXAS. 


JOHN   Ireland. 


The  distinguished  subject  of  this  sketch  was  born  of 
yeoman  parentage,  in  Hart  County,  Kentucky,  on  the  1st 
of  January,  1827.  His  educational  advantages  were  con- 
fined to  the  common  schools  of  the  country;  but,  actuated 
by  a  spirit  of  determination  and  self-reliance  which  buoyed 
him  above  the  restraints  and  gyves  of  circumstance,  his 
endeavors  were  fixe.d  upon  the  purpose  of  achieving  an 
honorable  place  among  men  ;  and  bursting  the  trammels  of 
his  early  youth,  he  sought  to  obtain  in  the  realities  of  life 
that  knowledge  of  which  his  school  facilities  had  afforded 
him  but  a  thirsting  taste. 

In  1847  he  was  appointed  deputy  sheriff  of  Hart  County, 
and  about  a  year  afterwards  was  elected  constable,  which 
position  he  held  for  three  years.  The  knowledge  of  pro- 
cess and  legal  business,  which  the  duties  of  these  offices 
afforded  him,  directed  his  ambition  to  the  bar,  and  in  1851 
he  began  the  study  of  law  in  the  office  of  Robert  D.  Murray 
and  Henry  C  Wood,  at  Mumfordsville.  He  at  once  im- 
pressed into  the  service  of  his  efforts  those  habits  of  close 
application  and  patient  industry  which  have  attended  him 
through  life,  which  have  constructed  the  sure  steps  of  his 
advancement  and  formed  the  sesame  of  his  great  success. 
So  constant  and  thorough  was  his  progress  in  mastering 
the  general  principles  of  the  common  law  that  in  scarcely 
more  than  one  year  he  was  admitted  to  the  bar  and  entered 
upon  his  practice;  but  casting  about  for  a  new  field  and 
more  inviting  prospects,  he  was  attracted  by  the  glittering 
future  and  allurements  of  the  rising  empire  of  the  South- 
west, and  in  1853  removed  to  Texas  and  settled  in  Seguin, 
where  he  began  the  erection  of  his  fame,  and  which  has 
ever  since  been  his  unofficial  home.     Here  his  sterling  qual- 


JOHN    IRELAND.  307 

ities  were  recognized  by  his  fellow-citizens,  and  in  1858  he 
was  elected  mayor  of  the  town.  At  the  approach  of  the 
foreboding  clouds  of  the  civil  war,  he  ardently  espoused 
the  cause  of  his  section  and  State,  and  favored  the  prompt 
resumption  of  its  sovereignty,  and  its  withdrawal  from  the 
Union.  He  was  a  member  of  the  Constitutional  Conven- 
tion of  1861,  and  as  soon  as  the  status  of  political  affairs 
were  settled  in  his  State  he  enlisted  as^a  private  in  the  vol- 
unteer army  of  the  Confederacy.  The  same  purpose  and 
devotion  to  duty  which  had  characterized  his  professional 
career  marked  him  as  an  eflScient  soldier  and  invited  pro- 
motion. He  was  made  successively  captain,  major  and 
lieutenant-colonel,  and  was  an  officer  of  high  standing. 
His  services  extended  throughout  the  campaigns  of  the 
Trans-Mississippi  Department,  and  at  the  close  of  the  war 
he  returned  to  the  practice  of  law  at  Seguin. 

In  1866  he  was  a  member  of  the  convention  assembled 
to  form  a  Constitution  for  the  State  in  conformity  with  the 
Johnson  policy  of  reconstruction,  and  was  soon  after 
elected  judge  of  his  judicial  district,  but  was  removed  on 
the  usurpation  of  military  power  in  1867.  In  1873  he 
served  as  a  member  of  the  House  in  the  Thirteenth  Leo-is- 
lature,  and  in  the  fourteenth  he  was  a  member  of  the 
Senate.  In  1875  he  was  appointed  associate  justice  of  the 
Supreme  Court,  but  was  retired  by  the  new  Constitution  of 
1876,  which  required  the  court  to  consist  of  only  three 
judges.  His  decisions  are  found  in  the  forty -fourth  and 
forty-fifth  volumes  of  Texas  Reports.  His  assiduous  habits 
and  fondness  for  close  analytical  investigation,  his  natural 
inquisitiveness  of  mind,  firm  and  well  grounded  convictions 
through  legal  training,  and  ample  resources  of  both 
principle  and  precedent,  made  him  an  excellent  Supreme 
judge,  and  his  decisions  manifest  a  steady  and  profound 
search  for  truth  and  justice.  His  opinion  in  Lewis  v. 
Aylett,  45  Texas,  190,  first  settled  the  principle  in  Texas 
jurisprudence  that  real  estate  can  not  pass  by  a  nuncupative 
will.  In  this  case  he  traces  the  power  of  devising  real 
estate  from  its  orio;in  in  the  Statute  of  Uses,  throuo-h  its 
enlargement  by  the  abolition   of  feudal  tenures,  when  the 


308  BENCH  AND  BAR  OF  TEXAS. 

custom  of  making  nuncupative  wills  was  engrafted  upon  it 
by  necessity,  to  which  it  had  always  been  restricted.  He 
showed  that  there  was  nothing  in  the  jurisprudence  of 
Texas  that  warranted  the  extension  of  the  power  of  nun- 
cupative devise  to  real  property  under  the  allodial  tenures 
of  the  State,  and  in  regard  to  the  competency  of  devisees 
to  establish  a  verbal  devise  of  personal  estate  he  adds :  — 
"  Every  dictate  of  humanity,  and  the  daily  lessons  of  life 
warn  and  teach  us  of  the  folly  and  impropriety  of  placing 
not  only  the  fortunes,  but  the  lives  of  the  sick,  aged  and 
afflicted  at  the  mercy  and  -avarice  of  the  corrupt  and  the 
vicious.  That  a  code  of  laws  should  allow  devisees  to  go 
before  a  clerk  or  judge  on  an  ex  parte  proceeding,  and 
prove  a  verbal  will  giving  to  strangers  an  estate,  leaving 
kindred  and  family  without  provision,  can  not  be  readily 
admitted,  and  it  would  deserve  universal  condemnation." 

So  confirmed  and  justly  recognized  was  his  character  for 
inteo-rity,  executive  abihty  and  perfect  devotion  to  the 
interests  of  the  State,  that,  in  1882,  he  was  elected  Gov- 
ernor of  Texas  by  more  than  one  hundred  thousand  majority 
of  the  popular  vote.  His  advent  to  the  executive  office 
was  at  a  period  of  comparative  prosperity,  when  the  spirit 
and  pride  of  the  people  were  ardently  enlisted  for  the 
advancement  of  the  various  public  institutions  of  the  State, 
in  which  he  also  shared,  and  the  succeeding  Legislature 
made  large  appropriations  for  that  purpose,  which  he  car- 
ried out  to  the  letter.  This  caused  a  deficiency  in  the 
treasury  at  the  close  of  his  first  administration,  which  was 
seized  upon  by  his  opponents,  who  were  actuated  by  pur- 
poses chiefly  of  a  personal  and  selfish  character,  to  defeat 
his  re-election.  The  free  grass  system  had  resulted  in  the 
enclosure  of  large  bodies  of  land  by  the  leading  stockmen 
of  the  State,  often  enveloping  and  shutting  in  the  smaller 
herdsmen,  and  excluding  them  from  access  to  the  water, 
courses.  This  produced  an  organized  system  of  fence 
cuttins:,  which  was  extended  to  lawful  owners  as  well  as  to 
intruders  upon  the  public  lands,  and  so  outrageous  and 
universal  had  grown  this  evil,  that  the  Governor  convened 
an   extra  session  of    the  Legislature   in  January,  1884,  to 


JOHN    IRELAND.  3()9 

devise  a  remedy  for  this  species  of  lawlessness.  Stringent 
and  efficient  laws  were  enacted  for  its  suppression,  which 
the  Governor  executed  with  his  characteristic  promptness 
and  vigor;  and  even  this  was  sought  to  be  used  to  his 
prejudice  and  to  impair  his  popularity.  But  the  innate 
justice  of  the  people  approved  and  appreciated  alike  his 
motives  and  his  official  acts,  and  at  the  Houston  convention 
in  August,  1884,  he  was  unanimously  re-nominated,  and 
was  re-elected  by  a  majority  vote  of  more  than  one  hundred 
thousand. 

It  has  been  truly  said  that  there  are  times  when  even  the 
virtues  of  men  provoke  hostility;  as  Tacitus  expresses  it, 
'nee  minus  periculum  ex  magna  favia  quam  ex  tnalo." 
But  Governor  Ireland  has  never  once  swerved  from  his 
principles  or  the  line  of  his  conscious  rectitude  to  conciliate 
his  enemies  or  to  soften  opposition.  But  with  motives 
based  upon  principle,  not  policy,  he  has  at  all  times  boldly 
proclaimed  his  views,  and  fearlessly  practiced  the  precepts 
of  his  conviction  and  the  dictates  of  his  judgment.  He 
abides  that  public  appreciation  which  never  "fails  to  do 
justice  to  noble  ends  attained  by  pure  motives  and  upri<;ht 
means.  ^ 

He  is  a  man  of  rare  self-respecting  dignity,  and  possesses 
the  virtues  of  steady  independence  and  sober  reliance, 
which  never  spring  from  a  commonplace  mind.  Starting 
in  life  amid  circumstances  by  which  thousands  of  our 
brightest  geniuses  have  been  overwhelmed,  he  peered  through 
the  clouds  of  obscurity,  and  having  once  caught  a  glimpse 
of  possibility,  he  fixed  an  unswerving  aim  upon  success, 
and  in  the  prime  of  life  his  sterling  traits  of  character  bear 
him  onward  in  the  achievement  of  usefulness  and  merit. 
His  career  has  been  one  of  incessant  labor ;  at  the  bar  in 
sedulously  pursuing  the  interests  of  his  clients,  in  the 
thorough  preparation  of  his  cases,  in  the  study  of  both 
sides  of  every  question  — the  possibilities  of  defeat  as  well 
as  the  possibilities  of  success ;  on  the  bench,  in  the  inde- 
fatigable search  for  the  true  principles  of  justice,  and  in 
the  executive  chair,  in  conscientious  efforts  to  perform  the 
duties  of  his  office  in  the   promotion   of   the  public   weal. 


310  BENCH  AND  BAU  OF  TEXAS. 

He  has  an  abiding  faith  and  lofty  pride  in  the  great  destiny 
of  his  State,  and  his  official  course,  while  unwarped  by  the 
demands  of  faction,  has  sought  to  harmonize  the  varied 
and  often  conflicting  interests  of  the  great  Commonwealth 
over  which  he  presides. 

Governor  Ireland  is  a  thorough  Democrat  of  the  pure 
Jeflersonian  school;  firm,  conservative  and  honest  in  his 
convictions,  he  throws  the  open  banner  of  his  principles  to 
the  public  view,  and  while  yielding  full  accord  to  the 
political  changes  really  effected  by  the  civil  war,  he  is  ten- 
derly mindful  of  the  rights  of  his  State,  and  has  cherished 
a  ready  endeavor  to  promote  its  welfare  in  spite  of  faction 
and  independent  of  Federal  remissness. 

The  defective  reciprocity  in  the  surrender  of  criminals  in 
the  new  treaty  between  the  United  States  and  the  Republic  of 
Mexico  has  subjected  the  whole  western  border  of  Texas 
to  the  incursions  of  thieves  and  murderers  from  the  Mexi- 
can States  bordering  upon  the  Rio  Grande.  This  has 
occasioned  great  trouble  to  his  administration,  and  upon  the 
failure  of  strenuous  efforts  to  obtain  Federal  protection, 
he  has  asserted  his  intention  of  preventing  these  evils  by 
the  militia  of  the  State.  But  the  change  of  principles  and 
policy  of  the  general  government  effected  by  the  advent  of 
a  Democratic  administration,  bearing  a  juster  regard  for 
the  rights  and  welfare  of  all  sections  of  the  country,  will 
doubtlessly  relieve  him  from  this  necessity. 

With  these  abnormal  exceptions,  so  firm  and  vigorous  has 
been  his  enforcement  of  the  laws,  that  at  no  time  has  crime 
been  less  prevalent,  life  and  property  safer,  or  the  general 
tenor  of  society  more  even  and  uniform  in  the  pursuit  of 
happiness  in  Texas  than  during  his  administration. 

Taught  from  his  earliest  youth  in  the  school  of  self- 
reliance  and  independent  action.  Governor  Ireland  keeps 
his  own  counsel  and  panders  to  no  element  of  society.  He 
is  a  man  of  iron  will,  and  in  his  official  capacity  acknowl- 
edges no  suzrainty  but  the  requirements  of  law,  the 
demands  of  duty,  the  dictates  of  his  own  judgment  and  the 
welfare  of  the  State.  His  manners  are  dignified  and  re- 
served, yet  he  is  generous  and  kind  in  his  disposition,    and 


JOHN    IRELAND.  311 

a  true  friend  to  those  who  gain  his  respect  and  confidence. 
There  is  nothing  ostentatious  or  artificial  in  his  character; 
but,  solid  and  practical  in  his  intellectual  composition,  his 
conduct  is  impressed  with  the  qualities  of  his  mind,  and  he 
preserves  a  steady  equanimity  in  both. 

To  say  that  he  is  devoid  of  strong  prejudices  would  be 
ail  attempt  to  destroy  the  equilibrium  in  which  nature 
poises  her  endowments;  but  he  lives  upon  an  oflicial  plane 
too  high  for  their  exercise,  and  the  dormancy  of  these  is 
but  the  counterpart  of  the  active  traits  which  shape  and 
model  his  character  into  an  orb  of  usefulness  and  eminence 
as  a  lawyer,  statesman  and  citizen. 

His  qualities  eminently  fit  him  for  the  times  and  events 
of  his  administration,  during  which,  the  troubles  alluded 
to  and  the  lawlessness  of  the  border,  have  been  entirely 
suppressed.  He  has  administered  the  affairs  of  the  State 
with  a  well-defined  grasp  and  vigor.  He  is  a  man  who 
cares  little  for  exterior  show  or  ceremonious  effect,  and  at 
his  second  inauguration  his  address,  which  he  read  from  a 
small  sheet  of  paper,  was  in  dignified  and  modest  contrast 
with  the  vain  display  which  modern  usage  has  introduced 
into  installment  exercises.  But  Texas  has  no  statesman 
of  sounder  judgment,  or  of  more  fidelity  and  fortitude  in 
the  promotion  and  protection  of  its  interests  and  rights. 

Governor  Ireland  has  been  twice  married.  His  first  wife 
was  Mrs.  Matilda  W.  Fanelott,  whom  he  wedded  in  1854, 
and  who  lived  but  a  short  time.  He  was  again  married  in 
1857  to  Miss  Anna  W.  Penn,  of  Mississippi,  a  lady  whose 
noble  qualities  and  accomplishments  embellish  his  oflScial 
life  and  adorn  her  station. 


312  BENCH  AND  BAR  OF  TEXAS. 


ROBERT    S.    GOULD. 


Robert  Simonton  Gould  was  born  in  Iredell  County, 
North  Carolina,  on  the  16th  of  December,  1826.  His 
father,  Daniel  Gould,  was  a  native  of  New  Hampshire,  and 
a  Presbyterian  minister.  His  mother,  whose  maiden  name 
was  Zilpha  M,  Simonton,  was  a  native  of  North  Carolina, 
and  of  Scotch-Irish  parentage.  His  father  died  when  he 
was  seven  years  of  age,  and  his  mother  soon  afterwards  re- 
moved to  Alabama,  and  settled  at  Tuscaloosa  with  the  view 
of  giving  him  and  a  younger  brother  the  advantages 
afforded  by  the  university  of  that  State,  and  to  the  accom- 
plishment of  this  object  she  devoted  all  her  energies.  She 
kept  a  boarding-house  for  many  years,  and  not  only  suc- 
ceeded in  giving  her  two  sons  a  collegiate  education,  but 
aided  in  educating  the  children  of  her  daughters,  present- 
ing a  beautiful  commentary  upon  the  influence  and  power  of 
a  noble  woman  for  the  accomplishment  of  good  and  the 
objects  of  her  heart's  desire,  and  to  her  self-sacrificing 
labors  and  the  Christian  example  the  subject  of  this  sketch 
is  largely  indebted  for  the  success  and  attainments  of  his 
after  life. 

Robert  Gould  was  placed  in  the  University  of  Alabama 
at  the  age  of  fourteen  years,  and  graduated  in  1844,  when 
he  had  just  reached  his  eighteenth  year.  In  1845  he  began 
the  study  of  law,  but  was  soon  afterwards  elected  tutor  of 
mathematics  in  the  university,  and  held  that  position  three 
years  and  a  half,  continuinf^  at  the  same  time  the  study  of 
law  as  his  duties  afforded  opportunity.  In  1849  he  ob- 
tained license  to  practice,  and  immediately  opened  an  office 
at  Macon,  Mississippi,  in  copartnership  with  Ex-Governor 
J.  L.  Martin.     In  the   fall  of  1850  he  removed  to  Texas 


ROBERT    S.  GOULD.  313 

and  located  at  Centerville,  in  Leon  County,  where  he  soon 
attained  a  prominent  position  at  the  bar. 

In  1853  he  was  elected  district  attorney  of  the  Thirteenth 
Judicial  District,  and  having  served  two  terms  in  this  ofBce, 
declined  re-election,  and  returned  to  his  general  practice. 
In  1855  he  was  married  to  Miss  Lenna  Barnes,  a  native  of 
Marengo  County,  Alabama,  and  a  lady  of  superb  qualities 
and  accomplishments. 

He  was  a  member  of  the  Secession  Convention  of  1861, 
and  was  soon  afterwards  elected  judge  of  the  Thirteenth 
District,  but  he  resigned  this  office  early  in  1862,  and  entered 
the  Confederate  service  as  captain  of  a  company.  He  was 
soon  afterwards  elected  major  of  a  battalion,  known  as 
Gould's  Battalion,  which  formed  a  part  of  Kandall's  brigade 
of  Walker's  division.  He  participated  in  the  battles  of 
Mansfield,  Pleasant  Hill  and  Jenkins'  Ferry,  in  the  last  of 
which  he  was  wounded,  and  had  his  horse  killed  under  him. 
His  battalion  was  afterwards  joined  to  another  and  formed 
into  a  regiment,  of  which  he  was  made  colonel. 

When  the  war  closed  he  returned  to  his  practice  of  law, 
and  in  1866  was  again  elected  judge  of  his  district,  but  was 
removed  in  1867  by  order  of  the  military  authority,  and 
considering  the  act  illegal,  he  did  not  at  once  resume  his 
practice,  but  resided  two  years  in  retirement  on  a  farm. 
In  1870  he  removed  to  Galveston,  and  in  May,  1874,  was 
appointed  by  Governor  Coke  associate  justice  of  the 
Supreme  Court,  to  fill  a  vacancy  occasioned  by  the  resigna- 
tion of  Judge  Peter  W.  Gray,  and  was  elected  to  the  same 
position  under  the  Constitution  of  1876  establishing  an 
elective  judiciary.  In  1881  he  was  appointed  chief  justice 
of  the  State,  to  fill  a  vacancy  caused  by  the  resignation  of 
Judge  George  F.  Moore,  and  was  a  candidate  before  the 
convention  of  1882  for  nomination  to  that  position,  but  he 
was  unsuccessful. 

As  a  lawyer  the  success  of  Judge  Gould  is  due  to  his 
habits  of  profound  and  painstaking  investigation,  and  to 
the  careful  and  accurate  preparation  of  his  cases.  His 
knowledge  of  law  is  scientific  as  well  as  practical,  and  he 
thoroughly  comprehends  its  reason  and  philosophy,  as  well 


314  BENCH    AND    BAR    OF    TE;XAS. 

as  its  application.  As  a  judge,  his  career  was  characterized 
by  a  steady,  faithful  and  conscientious  effort  to  discharge 
his  duty,  and  dispense  justice  with  a  uniform  and  impartial 
hand.  Among  his  most  important  and  best  delivered  opin- 
ions is  his  dissenting  opinion  in  Ex  parte  Towles,  48  Texas, 
413.  In  this  case  it  was  held  by  Chief  Justice  Eoberts  that 
the  Constitution  gives  to  the  District  Courts  no  power,  nor 
to  the  Legislature  any  authority  to  invest  them  with  the 
power  to  try  appeals  of  contested  elections  from  the  County 
Courts,  as  they  have  not,  as  under  the  old  Constitution,  "  a 
general  superintendence  and  control  over  inferior  tribunals." 
And  that  they  can  have  no  constitutional  jurisdiction  unle^;s 
the  contesting  voter  can  show  that  he  has  a  pecuniary 
interest  involved  amounting  to  the  value  of  five  hundred 
dollars,  and  a  legal  status  capable  of  a  judgment  enforcible 
by  execution. 

As  to  the  unconstitutionality  of  the  act  granting  such 
appeals.  Judge  Gould  held  that  the  determination  of  con- 
tested elections  was  not  a  matter  of  ordinary  legal  adminis- 
tration, and  like  other  special  and  unforeseen  cases,  is 
embraced  by  the  spirit  of  the  Constitution  in  its  grants  of 
jurisprudence,  although  it  is  not  named  in  express  terms  in 
the  allotment  of  judicial  powers  ;  and  that  as  to  the  want 
of  proper  parties  or  legal  subject-matter,  the  objection  was 
not  more  forcible  than  in  actions  against  the  State,  or 
proceedings  in  rem  in  admiralty  or  under  the  Texas  stock 
law;  and  that  if  the  Legislature  may  confer  special  juris- 
diction upon  "  such  other  courts  as  may  be  established  by 
law,"  it  surely  can  confer  the  jurisdiction  of  contested 
elections  upon  those  already  established. 

Before  his  term  upon  the  bench  had  expired.  Judge 
Gould  was,  without  solicitation  on  his  part,  elected  professor 
in  the  law  department  of  the  University  of  Texas,  which 
position  he  now  holds  ;  and,  under  the  joint  supervision  of 
ex-Governor  Roberts  and  him,  the  excellency  of  the  law 
department  of  that  institution  invites  attention  from  all 
parts  of  the  country. 


JOHN    W.  STAYTON.  315 


JOHN    W.    STAYTON, 


John  William  Stayton,  an  associate  justice  of  the  Su- 
preme Court  of  Texas,  was  born  in  Washington  County, 
Ky.,  on  the  24th  of  December,  1830.  His  father,  Robert 
G.  Stayton,  and  his  mother,  whose  maiden  name  was  Har- 
riett Pirtle,  were  both  natives  of  that  State,  of  which  their 
ancestors  were  settlers. 

In  1832  he  removed  with  his  parents  to  the  southwest 
portion  of  the  State,  which  was  at  that  time  an  unsettled 
country.  Having  lost  his  father  two  years  afterwards,  his 
training  devolved  solely  upon  his  mother,  who  was  a  woman 
of  good  culture  and  more  than  ordinary  intellectual  endow- 
ments, and  who  gave  him  the  best  educational  advantages 
the  new  country  afforded.  After  her  death,  which  occurred 
when  he  was  but  fourteen  years  of  age,  he  resided  on  a  farm 
with  a  relative  until  he  was  seventeen  years  old,  during 
which  time  he  performed  farm  labor  through  the  summer 
and  attended  the  country  schools  in  the  autumn  and  winter. 

Being  sufficiently  advanced  he  desired  at  this  age  to  enter 
college,  but  his  guardian  did  not  sanction  his  wishes,  think- 
ing it  best  not  to  expend  the  limited  means  of  his  ward  in 
this  manner.  In  consequence  of  which  he  declined  to  re- 
main longer  on  the  farm,  and  at  his  own  volition  served  an 
apprenticeship  at  the  blacligmith's  trade  until  he  was  of  age. 
During  that  time  he  continued  a  course  of  private  study 
and  general  reading,  which  was  perhaps  of  as  much  real  ad- 
vantage to  him  as  would  have  been  the  collegiate  course  which 
he  desired  to  pursue.  Having  attained  the  age  of  twenty- 
one  years,  he  began  a  moye  extensive  course  of  studies, 
which  he  continued  until  the  twenty-fourth  year  of  his  ao"e, 
when,  without  an  instructor,  he  began  the  study  of  law, 
which,  prompted  by  the  often  expressed  wish  of  his  mother 


316  BENCH  AND  BAR  OF  TEXAS. 

and  by  his  admiration  for  the  distinguished  men  of  the  pro- 
fession, had  been  his  intention  from  early  life.  Having 
read  the  usual  course  and  that  prescribed  in  the  University 
of  "Louisville,  he  afterwards  entered  the  law  department  of 
that  institution  and  graduated  in  March,  1856,  with  the  de- 
gree of  Bachelor  of  Laws.  In  April  of  the  same  year  he 
was  married  to  Miss  Jennie  Weldon,  also  of  Kentucky,  and 
to  this  noble  lady  he  is  greatly  indebted  for  his  remarkable 
success  in  life. 

In  October,  1856,  he  emigrated  to  Texas  and  was  admit- 
ted to  the  bar  of  this  State  at  La  Grange,  where  he  resided 
until  the  fall  of  1857,  and  then  moved  further  west  and 
settled  in  Atascosa  County.  His  steady  habits,  his  close 
application,  faithful  devotion  to  the  interest  of  his  clients, 
his  uniform  consistency  of  life  and  kind  and  amiable  disposi- 
tion gained  him  both  personal  and  professional  popularity, 
and  his  advancement  was  rapid.  In  1858  he  was  elected 
district-attorney  of  the  Eighteenth  Judicial  District  and 
was  re-elected  to. the  same  office  in  1860,  and  served  until 
the  end  of  the  term  for  which  he  was  elected. 

He  had  never  taken  any  active  part  in  political  affairs, 
though  feeling  a  deep  interest  in  the  great  events  which  in 
the  last  clays  of  1860  cast  their  ominous  shadows  upon  the 
national  horizon.  He  was  a  staunch  Southerner  in  his 
views  and  sentiments,  and  at  the  expiration  of  his  second 
term  as  district-attorney,  having  removed  his  family  to 
Sutherland's  Springs,  in  Wilson  County,  he  entered  the 
Confederate  service  as  a  private,  but  was  soon  afterwards 
promoted  to  a  captaincy,  and  remained  in  the  army  until 
the  end  of  the  war. 

When  the  great  issue  was  decided  against  his  section,  he 
accepted  its  natural  sequences  with  the  fidelity  of  a  good 
citizen  and  with  the  determination  of  an  unswerving  devo- 
tion to  law,  order  and  civic  duty,  and,  having  settled  at 
Clinton,  in  De  Witt  County,  he  engaged  in  teaching  school 
in  order  to  support  his  family, until  the  courts  should  be 
reopened.  In  1866  he  resumed  the  practice  of  law  in  co- 
partnership with  Samuel  C.  Lackey.  In  1871  he  removed 
to  Victoria,  and  formed  a  copartnership  with  A.  H.  Phil- 


JOHN    W.  STAYTON.  317 

lips,  and  this  place  has  continued  since  then  to  be  his 
home.- 

His  practice  was  now  laige  and  remunerative,  and  in- 
cluded all  classes  of  legal  business.  He  had  as  much  as  he 
could  do,  and  his  energy  and  dispatch  were  taxed  to  the 
utmost  to  perform  the  duties  entailed  by  his  extensive 
patronage.  He  permitted  no  abstraction  of  his  attention 
from  his  professional  labors,  and,  with  the  exception  of 
serving  as  a  member  of  the  Constitutional  Convention  of 
1875,  persistently  rejected  every  overture  of  political 
preferment.  In  November,  1881,  he  was  appointed  by 
Governor  Roberts  an  associate  justice  of  the  Supreme 
Court  of  Texas,  and,  in  1882,  was  elected  to  the  same 
position  by  the  people. 

It  has  been  said  that  the  personal  weight  of  no  one  can 
be  depicted  in  the  simple  narrative  of  his  achievements, 
and  that  the  largest  part  of  genius  is  latent.  This  silent 
and  subtle  quality  whose  impulses  guide  the  actions  of 
men,  but  whose  counsels  they  can  not  divulge,  constitutes 
essentially  that  which  we  call  character.  Achievement  may 
obtain  glory  and  a  reputation  among  men,  but  character 
alone  can  confer  the  colors  of  noble  purpose,  and  inspire 
the  attainment  of  noble  ends  by  noble  means.  To  this 
principle  Judge  Stayton  owes  his  success,  and  it  may  be 
truly  said  of  him,  as  Sir  James  Mackintosh  said  of  Mr. 
Grattan,  "the  purity  of  his  life  is  the  brightness  of  his 
glory." 

His  career  upon  the  bench  has  been  full  of  eflSciency  and 
faithful  service,  adorned  with  every  feature  which  ability, 
uprightness  and  devotion  can  impress.  His  opinions  bear 
the  marks  of  indefatigable  research,  a  conscientious  and 
unswerving  pursuit  of  law  and  justice,  and  are  always  well 
supported  by  reason,  statute  and  precedent.  Modest  and 
retired  in  his  deportment  and  manner  of  life,  he  detests 
notoriety,  and  shrinks  even  from  the  voice  of  approbation. 
But  the  records  of  the  court,  the  confidence  reposed  in  his 
integrity,  and  the  esteem  in  which  he  is  universally  held  by 
the  Texas  bar,  proclaim  at  the  same  time  his  merits  as  a 
judge  and  his  worth  as  a  man.     His  opinions  are  numerous. 


318  BENCH  AND  BAR  OF  TEXAS. 

They  are  always  clear,  concise  and  direct,  and  leave  no 
doubt  as  to  the  import  of  fact  or  the  true  bearing  of  prin- 
ciple. The  following  cases  eminently  exemplify  the  judicial 
traits  which  the  author  has  endeavored  to  describe,  and 
are  leading  adjudications  in  the  State  of  some  of  the  most 
intricate  and  important  questions  that  can  affect  society  :  — 

Statutory  assignments,  under  the  new  statute  —  Blum  v. 
Wellermuck,  56  Texas,  81;  Blum  v.  Welborne,  58  Texas, 
157  ;  Denaho  v.  Tish  Bros.  &  Co.,  lb.  165  ;  Coffin  v.  Doug- 
lass, 61  Texas,  406;  Keating  v.  Vaughn,  lb.  518. 

Attachment,  levy  in,  how  made;  constructive  delivery, 
57  Texas,  91 ;  affidavit  for,  56  Texas,  423. 

Application  of  payments  between  the  State  and  tax  col- 
lectors, 57  Texas,  185  ;  between  parties,  60  Texas,  387. 

Community  property,  what  constitutes  it,  57  Texas,  37. 
Eights  of  the  survivor  as  to  the  homestead,  lb.  670.  Pow- 
ers and  duties  of  the  survivor  and  the  rights  of  a  purchaser, 

60  Texas,  96,  and  61  Texas,  69. 

Actions  under  the  statutes  for  injuries  resulting  in  death. 
By  the  mother,  57  Texas,  491 ;  by  the  wife,  59  Texas,  435  ; 
by  the  father,  want  of  consent,  60  Texas,  397  ;  by  the  wife, 
where  the  train  causing  the  death  of  the  husband  was  in 
charge  of  employes  of  the  railroad  company,  but  operated 
for  contractors,  61  Texas,  527. 

Condemnation  of  land  for  railway,  who  must  institute 
proceedings  under  the  statute  ;  rights  of  land  owner,  59 
Texas,  326. 

Construction  of  constitutions  and  statutes,  exemptions 
from  taxation,  lb.  654  ;  statute  of  mills,  manufacture,  60 
Texas,  230  ;  validating  informal  acknowledgments,  lb.  360  ; 
invalidating  land  locations,  lb.  487;  days  of  grace,  61 
Texas,  437. 

Duties  of  officers  and  their  right  to  fees — District  and 
county  attorneys,  57  Texas,  307,  and  56  Texas,  385;  fraud- 
ulent trusts,  lb.  110. 

Homestead,  when  lost  as  a  place  of  business,  57  Texas, 
674  ;  when   lost  as  a  home,  56  Texas,  315  ;  limitation  of, 

61  Texas,  220  ;  on  property  held  by  tenants  in  common,  58 
Texas,  211 ;  abandonment,  part,  59  Texas,  32 ;   right  of  wife 


JOHN    W.  STAYTON.  319 

to  recover,  60  Texas,  209  and  235;  contract  to  refuse  the 
use  of,  61  Texas,  233. 

Injunction,  judgment  may  be  rendered  on  dissolution  of, 
practice,  57  Texas,  129. 

Joinder  of  parties  and  causes  of  action,  opinion  on  re- 
hearing, 58  Texas,  191. 

Land  law  ;  rights  of  purchaser  when  patent  has  not  been 
issued,  59  Texas,  427  ;  purchaser  of  school  lands,  60  Texas, 
61;  illegal  location,  61  Texas,  629;  mistake  and  accident, 
lb.  665. 

Municipal  taxation;  local  assessment,  when  valid,  56 
Texas,  522  ;  payment  of,  under  protest,  lb.  486. 

City  taxing  its  interest  in  property  of  which  it  is  a  part 
owner,  but  which  is  controlled  by  another  corporation,  5 
Texas  Law  Revieiv,  117. 

Liability  of  master  to  servant,  his  duty  to  warn  an  in- 
experienced employe  of  unseen  danger,  56  Texas,  301  ; 
who  represents  the  master,  defect  in  machinery,  negligence 
in  the  employment  or  retention  of  servants,  58  Texas,  277  ; 
when  the  danger  is  known  to  the  servant,  59  Texas,  10. 

Municipal  indebtedness,  authority  to  contract,  payment, 

58  Texas,  463. 

Insurance,  usage,  agents,  56  Texas,  234,  and   59  Texas, 
507  ;  to  whom  the  benefit  of  insurance  accrues,  lb.  674. 
Illegal  contracts,  60  Texas,  379. 
Negligence,  of  parents,  can  not  be  imputed  to  an  infant, 

59  Texas,  64. 

Notice ;  whether  a  promise  can  be  notice,  60  Texas,  315. 

Nuisance,  owner  of  propei'ty  liable  for,  61  Texas,  133  ; 
when  an  agent  is  liable  for,  lb.  Ill . 

Negotiable  interest,  when  it  may  be  held  as  collateral  se- 
curity, lb.  365. 

Measure  of  damages,  proximate  cause,  lb.  345. 

Jurisdiction,  county  boundaries,  58  Texas,  228 ;  of 
County  Court  over  guardians,  bond  after  discharge,  lb. 
554  ;  of  District  Court  over  injunctions  in  cases  involv- 
ing less  than  five  hundred  dollars,  lb.  616  ;  of  contested 
elections,  60  Texas,  46  ;  of  probate  of  wills,  lb.  46. 


320  BENCH  AND  BAR  OF  TEXAS. 

Lis  pendens,  writ  of  error,  60  Texas,  556. 

Stoppage  in  transitu,  lb.  278. 

Testament,  adoption,  under  the  Spanish  law,  ancient  in- 
struments, 61  Texas,  61. 

Liability  of  municipal  corporations  for  damages  for 
injuries  resulting  from  neglect.  Posneimski  v.  City  of  Gal- 
veston, 62  Texas. 

Liability  of  railway  company  for  injuries  arising  from 
neglect  of  receiver  while  the  road  in  his  hands.  Ryan  v. 
I.  &  G.  N.  R.  R.  Co.,  lb.,  and  Hicks  v.  I.  &  G.  N.  R.  R. 
Co.,  lb. 

Separate  property  of  married  woman,  resulting  trust, 
registration,  liens  upon,  60  Texas,  112. 

Wills,  powers,  construction  of,  62  Texas,  1. 

In  the  beginning  of  the  canvass  of  1884  the  people  of 
the  Seventh  District  desired  that  he  should  represent  them 
in  the  Congress  of  the  United  States,  and,  while  he  had  a 
distaste  for  political  office  and  was  devoted  to  his  judicial 
duties,  so  ardent  was  the  manifestation  of  this  wish  of  the 
people  that  it  was  thought  he  would  accept  the  nomination. 
This  elicited  the  following  communication  from  the  bar, 
and  his  reply,  as  substantially  published  in  the  Austin 
Statesman :  — 

Austin,  Texas,  June  4,  1884. 

Hon.  John  W.  Stayton,  Austin,  Texas  — 

Sir:  The  undersigned,  members  of  the  bar,  now  in  Aus- 
tin during  the  session  of  the  Supreme  Court,  believe  we 
utter  the  general  desire  of  the  bar  of  the  State  in  respect- 
fully requesting  you  not  to  resign  your  position  as  supreme 
judge  of  Texas  in  order  to  represent  the  district  in  which 
you  reside  in  Congress.  This  request  is  made  in  view  of 
what  seems  the  general  desire  in  your  district  that  you  shall 
become  a  candidate.  We  appreciate  the  anxiety  of  your 
local  constituents  that  you  shall  go  to  Congress,  but  we  re- 
spectfully suggest  that  you  represent,  as  supreme  judge, 
the  entire  State  in  a  higher  sphere  of  usefulness,  and  we 
hope  you  will  agree  with  us  in  the  belief  that  your  highest 


JOHN    W.  STAYTON. 


321 


duty  is  to  the  people  and  the  bar  of  the  entire  State,  who 
have  already  elected  you. 

M.  E.  Stringfellow, 
T.  T.  Gammage, 
Alvin  C.  Owsley, 
Charles  R.  Gibson, 
J.  H.  Robertson, 
J.  M.  Hartfield, 

C.  Edmundson, 
z.  t.  fulmore, 
Bethel  Coopwood, 
H.  E.  Shelley, 
W.  J.  Montgomery, 
W.  M.  Brown, 
James  A.  Mum, 
J.  W.  Laavrence, 
Gardner  Ruggles, 
R.  H.  Ward, 

D.  G.  Chalmers, 
S.  A.  Posey, 
j.  m.  morphis, 
Fred.  Carleton, 
A.  M.  Jackson, 
W.  M.  Walton, 
N.  S.  Walton, 
T.  S.  Maxey, 
H.  D.  Pkendergast, 
Osceola  Archer, 

C.  D.  Johns, 

D.  W.  Doom, 
N.  P.  Jackson, 

E.  B.  Hancock, 
D.  G.  Smith, 

J.  W. 


George  W.  Russ, 
L.  H.  Verny, 
George  L.  Hill, 
B.  R.  Webb, 
B.  H.  Rice, 
L.  J.  Storey, 
Dudley  G.  Wooten, 
James  R.  Davis, 
Daniel  Gettins, 
John  B.  Rector, 
T.  A.  Thomson, 
W.  A.  Blackburn, 
J.  W.  Cartwright, 

E.  T.  Moore, 
A.  H.  Graham, 
T.  E.  Hammond, 
I.   G.  Searcy, 
James  B.  Goff, 
W.  D.  Williams, 
A.  J.  Peeler, 

A.  M.  Jackson,  Jb,, 
R.  J.  Hill, 
G.  S.  Walton, 
S.  R.  Fisher, 
A.  W.  Terrell, 

F.  G.  Morris, 
John  W.  Robertson, 
A.  S.  Walker, 

N.  G.  Shelley, 
David  Sheeks, 
James  H.  Burts, 
Baines. 


To  this  Judge  Stayton  replied  that  the  subject  had  given 
him  much  concern,  as,  contrary  to  his  oft-repeated  desire, 
he  could  not  close  his  eyes  to  the  fact  that  it  was  the  wish 
of  many  friends  that  he   should    become  a  candidate  for 

21 


322  BENCH  AND  BAR  OF  TEXAS. 

Congress  in  the  Seventh  District.  He  realized  the  right  of 
the  people  to  have  the  services  of  any  citizen,  and  it  had 
been  a  difficult  thing  to  determine  his  duty  in  the  premises. 
The  people  of  the  Seventh  District  had  bestowed  many 
kindnesses  upon  him,  and,  were  he  not  already  in  the  ser- 
vice of  the  State,  he  should  deem  it  his  duty  to  sink  his 
own  personal  desires  and  preferences,  and  accept  a  nomi- 
nation for  Congress  if  tendered  by  the  people.  Having 
accepted  another  position  at  the  hands  of  the  people,  he  felt 
that  he  was  under  an  implied  obligation  to  hold  that  office 
and  discharge  its  duties  to  the  best  of  his  ability.  He  had 
not  encouraged  the  association  of  his  name  with  the  nomi- 
nation, but  had  said  frankly  that  if  he  could  see  clearly 
that  his  services  were  essential  to  the  welfare  of  the  dis- 
trict he  might  possibly  consent  to  become  a  candidate,  at 
the  same  time  requesting  that  his  name  be  not  urged  before 
the  people.  He  had  never  believed  the  services  of  any  one 
man  to  be  essential  to  the  welfare  of  the  Seventh  District. 
There  were  those  who  could  do  more  effectual  service  in 
Congress  than  he.  He  regretted  that  his  name  had  been 
mentioned  for  the  place,  but  returned  thanks  to  those  un- 
selfish friends  who  had  so  complimented  him.  He  felt  it 
his  duty  to  the  people  and  himself  to  state  that  he  could 
not  accept  a  nomination  for  Congress,  in  order  that  his 
candidacy  might  not  be  expected,  and  that  others  who  might 
be  willing  to  accept  the  place  might  be  entirely  unembar- 
rassed. He  closed  by  thanking  the  members  of  the  bar  for 
their  kind  expressions  of  confidence  and  esteem. 


CHARLES    S.  WEST.  325 


CHARLES  s.  West. 


It  will  be  observed  in  this  work  that  the  State  of  South 
Carolina  has  furnished  many  ornaments  to  the  Bench  and  Bar 
of  Texas.  The  patriotism,  love  of  liberty,  and  heroic  spirit 
of  the  young  Republic  and  State  were  congenial  to  the 
sentiments  which  the  nurseries  of  that  State  inspired  in  the 
minds  of  genius  and  ambition,  and  many  of  its  sons  cast 
their  lot  early  in  life  with  the  destinies  of  the  Lone  Star  ; 
among  these  were  Rusk,  Hemphill,  Lipscomb,  the  two 
Jacks,  Roberts,  Brewster,  and  the  subject  of  this  sketch  ; 
men  who  largely  shaped  the  proud  career  of  Texas  and 
adorned  and  elevated  its  jurisprudence. 

Charles-  Sherman  West,  one  of  the  associate  justices  of 
the  Supreme  Court  of  Texas,  was  born  in  Camden,  South 
Carolina,  on  the  24th  day  of  September,  1829.  Here  his 
father,  John  C.  West,  a  native  of  North  Carolina,  long 
lived  a  respected  and  honored  citizen,  and  died  in  1855. 
He  served  two  terms  as  sheriff  of  Kershaw  District,  and 
was  for  many  years  teller  in  the  old  bank  of  Camden.  His 
mother,  Nancy  Clark  Eccles,  who  was  connected  with  the 
Thorntons,  Eccles,  Clarks,  and  other  old  Carolina  families, 
was  educated  in  the  then  famous  Moravian  School  at 
Salem,  North  Carolina,  and  was  a  lady  of  literary  taste 
and  superior  culture.  She  was  often  a  contributor  to  the 
Augusta  Mirror^  and  prided  herself  in  efforts  to  establish 
a  State  literature  that  would  foster  and  encourage  Southern 
genius. 

Her  son,  the  subject  of  this  sketch,  enjoyed  the  best 
early  advantages  and  was  thoroughly  prepared  for  college 
under  the  instruction  of  noted  teachers  in  his  native  town. 
In  1845  he  was  sent  to  Jefferson  College,  at  that  time  a 
noted  Presbyterian   institution,  at  Cannonsburg,   Pennsyl- 


324  BENCH  AND  BAR  OF  TEXAS. 

vania,  and  under  the  supervision  of  the  celebrated  divine, 
Dr.  Eobert  J.  Breckinridge,  of  Kentucky.  In  1846  he 
returned  to  his  native  State  and  became  a  student  in  the 
College  of  South  Carolina,  which  was  then  presided  over 
by  the  famous  scholar  and  orator,  William  C.  Preston,  and 
in  which  Francis  Leiber,  the  well  known  writer  on  political 
economy,  was  a  professor,  and  he  graduated  at  this  insti- 
tution in  1848. 

On  leavinor  colleo-e  Mr.  West  returned  to  his  native  town 
and  finding  himself  in  needy  circumstances  engaged,  during 
the  years  1849-50,  as  a  teacher  of  a  small  school  in  the 
Boykin  family  at  Pleasant  Hill,  a  few  miles  from  Camden, 
and  during  that  time  devoted  his  spare  hours  to  the  study 
of  law  under  the  guidance  of  James  Chesnut,  who  was 
afterwards  United  States  Senator,  and  during  the  civil  war 
a  member  of  President  Davis'  staff.  This  accomplished 
gentleman  took  great  interest  in  the  young  student,  encour- 
aged and  aided  him  in  many  ways,  and  to  his  precepts  and 
the  sentiments  which  he  inculcated,  Judge  West  owes  more 
than  to  any  other  person  the  reputation  and  eminence 
which  he  has  attained  at  the  Texas  bar  as  one  of  the  ablest 
practitioners  and  thorough  lawyers  in  the  State. 

In  the  spring  of  1851  he  was  admitted  to  the  practice  of 
his  profession  at  Columbia,  and  located  at  Camden,  but 
the  litigation  in  those  times  being  generally  on  a  large  scale 
and  legal  patronage  being  confined  for  the  most  part  to 
experienced  practitioners  who  had  served  their  vigenti  an- 
norum  lucuhrationes  and  established  their  reputation,  he 
met  with  but  little  immediate  encouragement,  and  chafing 
under  the  restraints  of  an  arbitrary  custom  he  determined 
to  leave  his  native  State  and  seek  other  fields. 

In  the  fall  of  1852  he  immigrated  to  Texas  and  settled  at 
Austin,  where,  on  his  arrival,  he  had  l)ut  seven  dollars  and 
fifty  cents  in  his  pocket,  which  he  had  borrowed,  and  was 
really  without  a  dollar  of  his  own  in  the  world.  During 
the  first  two  years  of  his  residence  in  Austin  his  success 
was  limited,  but  in  1854,  Colonel  H.  P.  Brewster,  a  South 
Carolinian,  who  had  come  to  Texas  under  similar  circum- 
stances, sympathizing  with  the  efforts  of  his  young  fellow- 


CHARLES    S.  WEST.  325 

statesman,  took  him  into  copartnership,  and  from  that 
date,  starting  with  a  moderate  practice,  the  star  of  his 
professional  eminence  took  its  way  toward  the  zenith. 

In  1855  he  was  elected  a  member  of  the  Sixth  Legisla- 
ture of  Texas,  as  the  representative  of  the  Capital  District, 
and  participated  prominently  in  the  discussion  of  the  impor- 
tant questions  of  the  day.  His  speeches  in  defense  of 
General  Rusk,  on  the  public  debt  bill,  on  the  questions 
which  at  that  time  agitated  the  South,  and  other  subjects, 
attracted  public  attention  and  gained  him  popuhirity. 

In  1856  he  formed  a  copartnership  with  Hon.  John  Han- 
cock, and  the  firm  became  one  of  great  celebrity.  For 
many  years  they  did  the  leading  practice  in  their  section  of 
the  State,  including  many  counties  of  Central  Texas.  They 
were  particularly  noted  for  their  extensive  land  practice, 
their  large  business  in  the  Federal  courts,  and  for  their  suc- 
cess as  the  attorneys  and  representatives  at  Austin  of  the 
Houston  and  Texas  Central  Railroad. 

In  1861  Mr.  West  was  elected  Secretary  of  State  under 
Governor  Lubbuck,  but  in  1862  he  entered  the  Confederate 
service  and  was  appointed  Assistant  Adjutant-General,  with 
the  rank  of  Captain,  on  the  staff  of  General  Hebert,  and 
subsequently  served  in  the  same  capacity  on  the  staff  of 
General  Magruder.  At  the  battle  of  Galveston  he  was  on 
the  staff  of  General  Scurry,  and  both  that  officer  and  Gen- 
eral Magrudergave  him  complimentary  mention  for  valuable 
services  and  good  conduct  in  their  reports.  During  the 
last  year  of  the  war  he  served  on  the  staff  of  General  E. 
Kirby  Smith,  in  the  Adjutant-General's  department,  and  was 
with  the  command  of  General  Scurry  when  that  officer  was 
killed  in  the  battle  of  Jenkins'  Ferry,  on  the  Sabine  River, 
in  Arkansas.  He  was  promoted  for  gallantry  in  this  action 
to  the  rank  of  Major,  and  was  assigned  to  duty  as  Judge- 
Advocate  in  the  Trans-Mississippi  department,  and  held  this 
position  until  the  close  of  the  war. 

At  the  termination  of  hostilities  Judge  West  returned  to 
Austin  and  resumed  his  copartnership  with  Judge  Hancock, 
and  the  business  of  the  firm  soon  became  equal  to  that  of 
any  in  the  State  in  all  the  branches  of  the  profession.     In 


326  BENCH  AND  BAR  OF  TEXAS. 

1874,  he  was  admitted  to  practice  in  the  Supreme  Court  of 
the  United  States,  and  argued  before  that  court,  among 
others,  the  very  important  case  of  Connett  v.  Williams, 
which  increased  his  reputation  as  an  advocate  and  learned 
lawj'^er.  In  1876,  under  an  act  passed  in  pursuance  of  the 
requirements  of  the  new  Constitution,  he  was  appointed  by 
Governor  Coke  one  of  the  first  commissioners  to  revise  the 
Code  of  the  State.  He  was  made  chairman  of  the  com- 
mittee, and  devoted,  in  conjunction  with  his  colleagues,  all 
his  energies  and  learning  to  the  compilation  of  the  present 
Revised  Statutes  of  Texas,  which  attest  in  the  highest  de- 
gree the  eminence  of  its  authority. 

He  also  represented  Travis,  and  a  number  of  adjoining 
counties,  in  the  convention  which  framed  the  Constitution 
of  1875,  and  was  chairman  of  the  important  committee  on 
general  provisions.  He  was  not  satisfied  with  the  draft  of 
the  constitution  when  it  was  presented  to  the  convention, 
and  opposed  its  adoption  as  being,  in  his  judgment,  defec- 
tive, but  voted  for  it  at  the  polls  as  being  far  superior  to 
the  existing  organic  law. 

In  December,  1881,  he  was  elected  an  Associate  Justice 
of  the  Supreme  Court,  and  holds  that  position  at  the  present 
time.  His  learning  and  integrity,  his  powers  of  research, 
his  calm  patience  and  courteous  dignity,  eminently  fitted 
him  for  this  elevated  position,  and  he  forms  one  of  a  trio 
of  judges  whose  qualities  and  ability  revives  the  "  old 
court"  of  other  days. 

As  a  lawyer.  Judge  West  was  particularly  noted  for  being 
a  most  consummate  pleader,  and  an  excellent  practitioner, 
and  was  considered  one  of  the  ablest  chancery  and  Federal 
court  lawyers  at  the  Texas  bar.  He  prepared  his  cases  with 
great  care  and  research,  and  maintained  his  side  in  argu- 
mentation with  the  skill  of  a  thorough  dialectician.  The 
merits  of  his  cases  lacked  nothing  which  labor  and  learning 
could  impart  to  them,  and  conscientious  fidelity  to  the  in- 
terest of  his  clients  endowed  his  eff'orts  with  confidence  and 
satisfaction,  and  success  crowned  his  professional  virtues. 

As  a  judge  his  opinions  are  noted  for  their  clearness 
and  precision,  and  have  the  special   merit  of  adducing  all 


CHARLES    S.  WEST.  327 

the  former  decisions  of  the  court  upon  the  question  at  issue, 
and  sifting  from  them  every  analogy  and  application  to  the 
merits  of  the  case  at  bar,  and  laying  down  clearly  the  views 
of  the  present  court,  so  that  no  conflict  can  arise  between 
the  assertion  of  a  general  principle  and  a  particular  state 
of  facts. 

In  private  and  social  life,  Judge  West  is  somewhat  re- 
served in  his  manners,  but  he  is  a  generous,  courteous  and 
kind-hearted  man,  and  his  personal  qualities  are  staunchly 
subsidiary  to  his  professional  attainments.  He  was  married 
in  1859  to  Miss  Florence  Randolph  Duval,  eldest  daughter 
of  Hon.  Thomas  H.  Duval,  who  so  long  and  satisfactorily 
occupied  the  position  of  United  States  District  Judge  for 
the  "Western  District  of  Texas.  Her  grandfather  was  Hon. 
William  P.  Duval,  the  first  Governor  of  Florida,  and  the 
Ralph  Ringwood  of  Washington  Irving's  "  Tales  of  Brace- 
bridge  Hall,"  whose  intimate  friendship  he  enjoyed.  Mrs. 
West  was  a  highly  accomplished  lady,  a  charming  vocalist, 
and  would  have  been  an  ornament  to  any  society.  She  pos- 
sessed a  rare  poetic  taste  and  genius.  A  small  volume  of 
her  poems  have  been  published  for  private  circulation  only, 
and  they  are  of  superior  literary  excellence.  Judge  West 
is  not  a  member  of  any  religious  denomination,  but  has  a 
predilection  for  the  Protestant  Episcopal  Church,  and  for 
thirty  years  has  been  a  regular  attendant  upon  the  services 
of  that  communion. 


328  BENCH  AND  BAR  OF  TEXAS. 


RICHARD   S.  Walker. 


Richard  Sheckle  Walker  is  a  native  of  Kentucky,  and  was 
born  in  Barren  County  in  the  year  1824.  His  early  educa- 
tional advantages  were  ample  and  propitious.  He  gradu- 
ated in  1842  at  Centenary  College,  Jackson,  Louisiana,  and  in 
1844,  when  but  twenty  years  of  age,  received  his  diploma 
from  the  law  department  of  Transylvania  University,  at 
Lexington,  Kentucky,  and  his  license  to  practice  at  the  bar 
of  that  State.  Returning  to  Jackson,  Louisiana,  which  was 
then  his  home,  he  devoted  one  year  to  the  study  of  civil  law 
preparatory  to  practice  in  the  Louisiana  courts.  But  Texas 
having  recently  to  that  time  been  admitted  into  the  Union 
his  aspirations  seized  upon  its  prospects,  and  he  determined 
to  cast  his  fortunes  with  the  bar  of  the  new  State,  and 
located  at  San  Augustine  in  February,  1846,  where  he  began 
his  long  and  distinguished  professional  career.  But  having 
married  Miss  Eliza  J.  Clark,  a  daughter  of  Judge  Amos 
Clark,  of  Nacogdoches,  in  the  summer  of  1848,  he  imme- 
diately removed  to  that  place,  and  formed  a  copartnership 
with  his  father-in-law. 

With  endowments  of  a  high  order,  combined  with  the  ad- 
vantages of  his  eminent  association,  his  rise  at  the  bar  was 
rapid  and  confirmed,  and  in  1847  he  was  appointed  district 
attorney,  and  was  elected  to  the  same  office  at  each  succes- 
sive term  during  a  period  of  nearly  eight  years.  In  1857  he 
formed  a  copartnership  with  Judge  George  F.  Moore,  after- 
wards chief  justice  of  the  State,  and  continued  this  connec- 
tion until  he  was  elected  to  the  district  bench  in  1860. 
During  this  association  he  was  appointed,  in  conjunction 
with  his  partner,  reporter  of  the  decisions  of  the  Supreme 
Court,  and  they  prepared  the  twenty-second,  twenty-third 
and   twenty-fourth  volumes  of  Texas  Reports,  which  were 


RICHARD    S.  WALKER.  329 

made  statutory  models  for  subsequent  issues.  In  1866  he 
reported  alone  the  twenty-fifth  volume,  and  was  a  member 
of  the  constitutional  convention  of  that  year,  in  which  he 
took  an  active  part  in  framing  a  constitution  which  would 
at  the  same  time  comply  with  the  exigencies  of  the  situation 
and  assert  the  rights  and  dignity  of  the  State. 

In  1873  he  was  appointed  by  Gov.  Coke  to  the  judge- 
ship of  his  former  judicial  district,  to  which,  at  the  expi- 
ration of  the  term  of  his  appointment,  he  was  elected  by  the 
people.  In  1879  he  was  appointed  a  member  of  the  Court 
of  Commission  of  Appeals,  to  which  he  has  since  been  twice 
reappointed,  and  of  which  he  is  now  the  presiding  judge. 

As  a  lawyer  the  career  of  Judge  Walker  has  been  eminent 
and  brilliant.  The  practice  of  the  firms  of  Clark  &  Walker 
and  of  Moore  &  Walker,  both  in  the  Federal  and  State 
courts,  was  large  and  extensive,  and  they  were  employed  in 
many  important  cases  in  both  the  civil  and  criminal  branches 
of  jurisprudence.  He  held  the  position  of  district  judge 
until  1865,  when  he  was  removed  by  military  authority  as 
one  of  the  impediments  to  reconstruction.  He  then  con- 
tinued his  practice  alone,  with  increasing  reputation,  until 
his  professional  ability  and  pure  character  caused  him 
likewise  to  be  called  into  service  in  a  high  judicial  ca- 
pacity, and  the  features  which  he  has  been  instrumental 
in  imparting  to  the  jurisprudence  of  the  State,  both  as  a 
lawyer  and  judge,  are  important  and  varied.  He  has 
devoted  all  his  mental  and  phj^sical  energies  to  his  profes- 
sion, and  consequently  his  knowledge  of  law  is  profound 
and  comprehensive.  Endowed  with  a  high  order  of  talents 
his  intellectual  powers  have  been  trained  and  whetted  in  a 
severe  school  of  discipline  and  application.  His  capacity 
for  intellectual  labor  is  limited  only  by  his  powers  of  phy- 
sical endurance,  and  he  possesses  the  highest  of  all  intel- 
lectual traits,  and  that  to  which  Sir  Isaac  Newton  attributed 
the  excellence  of  his  mental  qualities  —  the  power  of  con- 
centrating his  thoughts  —  the  faculty  of  close  attention  and 
patient  thinking.  His  mind  is  vigorous  and  active  ;  its 
resources  are  rich  and  varied,  and  constantly  at  his  com- 
mand. 


330  BENCH  AND  BAR  OF  TEXAS. 

His  perceptions  are  singularly  prompt  and  acute,  and  his 
ripened  judgment  readily  separates  the  practical  from  that 
which  is  speculative,  while  sound  reason  and  accurate  asso- 
ciation verify  his  knowledge.  This  analytical  capacity  of 
devining  the  elements  of  a  question,  of  measuring  their 
separate  and  combined  force,  and  determining  at  once  the 
true  character  of  a  proposition  —  to  untwine  the  unsized 
hank  of  concretion,  eliminate  the  false  strands  and  wind 
back  the  threads  of  abstraction  into  the  pure  synthesis  of 
truth  is  the  most  subtle  quality  of  the  human  mind,  and  the 
highest  characteristic  of  professional  eminence.  This  calm, 
clear-sighted  understanding,  linked  with  unswerving  fidelity, 
is  the  secret  of  the  success  which  has  built  for  Judge 
Walker  his  well  deserved  reputation  as  an  able  lawyer,  and 
combined  with  his  varied  and  extensive  learning,  his  stern 
integrity  and  purity  of  character,  the  judicial  model  is 
complete,  and  as  an  excellent  judge,  he  enjoys  the  confidence 
and  esteem  of  both  the  bar  and  the  people. 

These  traits  which  denote  a  superior  mind  and  a  superior 
judge  are  heightened  by  his  personal  accomplishments.  The 
light  which  illuminates  his  mind  is  kindled  in  his  heart,  and 
there  it  shines  with  its  brightest  luster.  He  is  a  man  of  an 
exceedingly  amiable  character,  and  free  from  any  over- 
wrought superficial  sternness  of  judicial  ethics,  his  manners 
are  softented  by  a  complaisancy  and  polish  which  indicate 
a  heart  full  of  kindness  and  generous  impulses.  He  pos- 
sesses in  an  eminent  degree  the  quality  which  Lord  Claren- 
den  says  particularly  marked  the  character  of  John 
Hampden,   "  a  flowing  courtesy  towards  all  men." 

-  The  literary  attainments  of  Judge  Walker  are  likewise 
of  a  high  order.  The  versatility  of  his  genius  enabled  him 
without  detriment  to  the  duties  of  his  jealous  profession  to 
cultivate  a  polished  style  of  literary  composition,  rarely 
found  in  one  whose  thoughts  and  ideas  are  constantly  clothed 
in  the  starched  and  staid  habit  of  legal  diction.  He  has  a 
fine  classical  taste  and  copious  command  of  language,  and 
his  style  is  chaste,  unique  and  spirited,  subdued  only  by 
the  weight  of  thought  and  argument  —  a  quality  character- 
ized by  "  tot   verba,  tot  pondera."      His    address  to  the 


RICHARD    S.   WALKER.  331 

Texas  Bar  Association  in  1883,  published  by  the  associa- 
tion, is  a  model  of  didactic  composition,  sparkling  with 
refined  phraseology  and  verbal  elegance.  The  following 
are  among  the  most  important  cases  argued  by  Judge 
Walker  before  he  was  appointed  to  the  bench.  His  re- 
ported decisions  speak  for  themselves  :  — 

Grain  v.  Grain,  17  Texas,  82,  and  21  Texas,  790  — pre- 
sented questions  of  the  first  impression  in  Texas,  under  the 
will  law  of  1840.  That  law  inhibited  the  disinherison  of 
the  testator's  children  beyond  one-fonrth  of  his  property. 
In  this  case  the  testator  hud  made  conveyances  during  his 
life  to  a  favored  child  of  nearly  all  of  his  property,  the 
aggregate  value  of  which  was  about  $24,000.  After  his 
death,  his  other  children  brought  this  suit  to  recover  their 
inheritable  share  of  three-fourths  of  the  property,  alleging 
that  the  deeds  of  conveyances  were  simulated  devices  to 
avoid  the  will  law.  This  suit  was  brought  and  prosecuted 
in  the  District  Gourtby  Glark  &  Walker,  where  a  demurrer 
was  sustained  to  the  petition  and  the  cause  dismissed.  The 
plaintiff"  appealed  and  it  was  argued  in  the  Supreme  Gourt 
by  Judge  Walker,  and  the  judgment  was  reversed  and  the 
doctrines  laid  down  in  the  two  cases  cited  above  were  estab- 
lished for  the  first  time  in  the  jurisprudence  of  the  State. 

Aylott  V.  Lewis,  45  Texas,  190.  This  was  another  wiU 
case  brought  by  R.  S.  Walker  and  his  son,  J.  G.  Walker. 
The  question,  whether  real  estate  can  pass  under  a  nuncu- 
pative will  in  view  of  the  language  of  the  statute  of  1840. 
It  was  held  that  it  did  not.  The  brief  is  reported,  and  in 
the  discussion  of  that  point  the  court  adverts  to  it  in  terms 
of  marked  commendation.  The  view  contended  for  was 
sustained  in  Ohio  under  a  Statute  exactly  similar,  as  is 
shown  in  the  brief.  Three  years  after  the  decision  of  this 
case  the  features  of  the  will  law  seem  to  have  been  so  far 
varied  from  those  of  the  former  law,  as  to  suggest,  at  all 
events,  the  idea  that  the  construction  unsuccessfully  con- 
tended for  in  Alyott  v.  Lewis  was  intended  to  be  adopted 
by  the  Revised  Statutes.  But  no  case  has  arisen  under  the 
revision  presenting  the  question  for  decision.     This  case 


332  BENCH  AND  BAR  OF  TEXAS. 

stands  alone  in  the  reports,  as  the  only  one  on  the  question 
involved. 

Hewitt  V.  The  State,  25  Texas,  722,  is  a  case  often  quoted 
in  text  books,  as  well  as  in  Texas  jurisprudence.  The 
question  involved  was  made  by  Judge  Walker  on  the  trial 
of  the  case  in  the  court  below  questioning  the  constitu- 
tional power  of  the  Legislature  to  provide  in  a  penal  law 
that  the  indictment  may  dispense  with  the  allegation  of  any 
fact  essential  to  show  on  its  face  the  violation  of  the  law, 
or  the  ingredients  of  the  crime,  and  to  throw  the  burden 
of  the  proof  on  the  accused  to  disprove  a  fact  not  alleged 
in  the  indictment  for  the  offense.  The  doctrine  contended 
for  was  sustained  by  the  Supreme  Court  on  constitutional 
grounds. 

Moore  v.  Letchford,  35  Texas,  186.  This  case  involved 
the  construction  and  the  effect  of  the  repeal  and  the  amend- 
ment of  the  several  statutes  regulating  the  lien  of  judgments 
on  lands;  and  also  the  effect  or  influence  of  the  civil  war 
upon  liens  created  by  judgments.  This  suit  was  brought 
against  the  current  impression  of  the  profession  as  to  the 
law  involved  in  the  case,  and  in  the  court  below  a  demur- 
rer to  the  petition  was  sustained.  On  appeal  the  views 
presented  by  Judge  Walker  in  his  brief  were  fully  sustained, 
and  the  law  as  then  settled  has  continued  ever  since,  and 
the  brief  of  appellant's  counsel  was  referred  to  in  a  subse- 
quent case  as  laying  down  the  correct  rule. 

Cravens  v.  Brooke,  17  Texas,  R.  268.  This  was  a  case 
involving  the  construction  of  the  law  granting  pre-emption 
rights  to  settlers  on  vacant  public  domain  on  several  impor- 
tant points  which  had  not  before  been  determined.  The 
case  was  argued  by  Judge  O.  M.  Roberts  on  one  side,  and 
Judge  Walker  on  the  other ;  the  arguments  of  both  appear 
in  the  report  of  the  case.  Chief  Justice  Hemphill  in  the 
opinion  said  the  cause  had  been  argued  with  signal  ability 
by  the  counsel  on  both  sides.  This  case  may  be  regarded 
as  one  of  the  leading  cases  on  the  questions  involved. 


JOHN    P.  WHITE.  333 


JOHN    P.    WHITE. 


John  Preston  White,  presiding  judge  of  the  Texas  Court 
of  Appeals,  was  born  at  Fruit  Hill,  near  Abingdon,  Vir- 
ginia, on  the  7th  of  March,  1832,  of  which  place  his  father, , 
James  L.  White,  was  a  native  and  merchant.  He  had  from 
his  earliest  youth  the  advantages  which  the  excellent 
schools  and  academies  of  his  town  afforded.  In  1847  he 
entered  Emory  and  Henry  College,  from  which  he  was 
graduated  in  the  regular  collegiate  course  in  1850,  and  re- 
ceived the  Robertson  prize  medal  for  proficiency  and  accom- 
plishments in  oratory.  In  the  fall  of  1850  he  entered  the 
University  of  Virginia,  taking  the  tickets  of  moral  philoso- 
phy and  law,  and  received  certificates  of  proficiency  in  both 
of  these  departments  at  the  following  intermediate  examin- 
ation. In  1851  he  was  chosen  anniversary  orator  for  the 
Jefferson  Society,  and  soon  afterwards  retired  from  the 
university,  without  standing  a  final  examination,  in  conse- 
quence of  a  severe  attack  of  pneumonia,  which  came  near 
ending  his  life. 

On  the  recovery  of  his  health  he  studied  law  two  years  in 
the  office  and  under  the  instruction  of  Samuel  Logan,  a  dis- 
tinguished lawyer,  and  at  that  time  Commonwealth's  attor- 
ney for  Washington  County,  Virginia.  In  August,  1853,  he 
was  admitted  to  the  bar,  upon  an  examination  before  George 
W.  Hopkins,  Andrew  Fulton  and  R.  M.  Hudson,  three  dis- 
tinguished circuit  judges  of  Virginia,  and  began  the  practice 
of  his  profession  at  Abingdon.  He  was  married  during  the 
same  year  to  Miss  Annie  Stuart  Lewis,  an  accomplished 
and  noble  young  lady  of  Charlottesville.  His  early  pro- 
fessional prospects  were  flattering,  but  the  lucubrations  of 
a  young  lawyer  at  the  bar  of  Virginia  at  that  period  were 
defined  by  an  arbitrary  custom,  and  often  painfully  pro- 


334  BENCH  AND  BAR  OF  TEXAS. 

longed  before  he  was  considered  competent  to  manage  an 
important  case,  or  exert  an  influence  favorable  to  a  success- 
ful issue  ;  and,  chafing  under  restraints  which  prevented  the 
immediate  and  full  development  of  his  talents,  Mr.  White 
sought  a  more  spacious  and  less  ceremonious  field,  and  on 
visiting  Texas  in  the  early  part  of  1853,  he  was  so  favorably 
impressed  with  the  advantages  which  it  offered  to  his  aspira- 
tions, that  he  determined  to  make  his  home  in  the  new  State, 
and  in  1855  removed  to  Seguin,  in  Gaudalupe  County, 
where  he  settled  in  the  practice  of  law,  in  copartnership 
with  Thomas  M.  Logan,  a  son  of  his  old  preceptor,  who 
came  with  him  to  Texas  and  died  a  year  or  two  afterwards. 

At  Seguin  Mr.  White  soon  established  a  reputation  both 
as  a  lawyer  and  a  man  of  culture  and  talent,  and  he  was 
employed  in  most  of  the  important  cases,  both  civil  and 
criminal,  that  came  before  the  courts  of  Gaudalupe  and 
Comal  Counties,  among  which  was  the  great  case  of  Demchy 
V.  Devilbiss,  reported  in  37  Texas,  93,  which  involved  the 
title  to  the  entire  city  of  New  Braunfels,  and  which  he 
gained  in  behalf  of  the  city.  He  devoted  all  his  energies 
and  talents  to  his  profession,  and,  as  a  practitioner,  was 
eminently  successful  in  both  the  civil  and  criminal  branches 
of  the  law.  While  possessed  of  marked  executive  abilitj'- 
and  popular  traits  of  character,  he  had  no  aspiration  for 
political  or  even  professional  office,  and,  with  the  exception 
of  being  a  notary  public  and  Mayor  of  Seguin,  he  decfined 
all  inducements  of  official  preferment  until  he  was  appointed 
by  Governor  Coke,  in  1874,  to  the  bench  of  the  Twenty- 
second  Judicial  District.  This  position  he  held  until  1876, 
when  he  was  elected  one  of  the  three  judges  of  the  Court  of 
Appeals,  and,  upon  the  death  of  Judge  Ector,  in  1879,  was 
elected  Presiding  Judge  of  that  bench,  which  position  he 
still  occupies. 

As  a  judge,  he  is  full  of  steady  energy  and  research.  His 
decisions  are  rendered  in  a  cogent  and  spirited  style,  indic- 
ative of  clear  comprehension,  thorough  conviction,  and 
conscientious  judgment.  His  knowledge  of  law  and  prece- 
dent is  comprehensive.  The  natural  powers  of  his  mind 
are  vigorous  and  have  been  cultivated   by  an  excellent  edu- 


JOHN    P.  WHITE.  335 

cation  and  sedulous  professional  training.  These  qualities, 
associated  with  a  strong  force  of  character  and  a  high  sense 
of  duty  eminently  qualify  him  for  the  position  he  holds- 
Kind-hearted  and  sympathetic  in  his  disposition,  he  is 
peculiarly  sensitive  to  the  appeals  of  lenifying  circum- 
stances, and  in  criminal  cases  tempers  his  judgments  with 
every  meritorious  palliation  consistent  with  a  strict  compli- 
ance with  the  demands  of  law  and  justice. 

Judge  White  has  decided  many  important  questions  of 
first  impression  in  Texas  jurisprudence.  His  decision  in 
the  case  of  Johnson  v.  The  State,  1  Texas  Court  of  Ap- 
peals, 333,  in  which  he  admitted  the  common-law  principle 
that  the  testimony  of  a  deceased  witness  properly  taken  on 
the  examining  trial  before  a  justice  is  valid  evidence,  has 
been  incorporated  in  the  code  of  criminal  procedure.  His 
opinion  in  Cox  etal.  v.  The  State,  8  Texas  Court  of  Appeals, 
254,  sustaining  the  power  of  a  district  judge  to  change  the 
venue  in  criminal  cases  of  his  own  motion,  and  establishius: 
the  inability  of  a  verdict  to  cure  a  defective  indictment,  is 
able  and  exhaustive,  and  impressed. these  principles  into 
permanent  features  of  Texas  jurisprudence.  His  interpre- 
tation of  the  phrase  "  disturbing  public  worship,"  in  Wood 
V.  The  State,  11  Texas  Court  of  Appeals,  318,  as  being 
inapplicable  to  mere  ecclesiastical  meetings,  caused  the  Leg- 
islature to  enact  its  appliance  to  assemblages  of  either  char- 
acter. 

His  decision  in  Wooldridge  v.  The  State,  13  Texas  Court 
of  Appeals,  445,  is  a  striking  illustration  of  his  strict  con- 
struction of  law,  and  the  vigilant  watch  which,  as  a  judge 
of  a  court  of  last  resort,  he  maintains  at  the  door  of  jus- 
tice. The  jury  in  that  case  returned  the  verdict  that  "  we, 
the  jury,  find  the  defendant,  Ben  Wooldridge,  guilty  of  mur- 
der in  the^s^  degree,  and  assess  the  punishment  at  death.'' 
The  insufficiency  of  this  verdict  was  presented  as  ground  of 
a  motion  for  a  new  trial,  which  was  overruled,  and  on  the 
trial  of  the  appeal.  Judge  White  sustained  the  invalidating 
defect  and  remanded  the  case.  For  this  he  was  severely 
assailed  by  law  critics  throughout  the  country  ;  but  no  an- 
swer has  ever  been  made  to  the  argument  which  led  to  his 


336  BENCH  AND  BAR  OF  TEXAS. 

conclusion.  Here  was  a  verdict  containing  the  word  ^6'^  — 
a  word  properly  spelt,  well  defined  and  well  known,  which 
could  not  be  made  either  by  sound  or  signification  to  supply 
the  place  of  the  requisite  word  ^^ first,''  or  convey  any 
idea  that  enters  into  the  composition  of  a  legal  verdict. 
Therefore,  not  even  the  principle  of  idem  sonans  could 
apply.  Could  the  judge  strike  out  a  properly  spelt  and 
well  known  word  in  a  verdict  and  by  inference  and  intend- 
ment substitute  another  of  entirely  different  import?  If 
so,  where  would  this  power  end?  If  he  could  replace  one 
word,  he  could  replace  another,  and  change  the  entire  char- 
acter of  a  verdict  at  discretion.  Nor  could  the  pronuncia- 
tion of  the  proper  word  by  the  clerk  in  reading  the  verdict 
remedy  the  defect,  for  that  would  be  to  cure  one  error  by 
virtue  of  another. 

His  distinction  in  Simco  v.  The  State,  9  Texas  Court  of 
Appeals,  in  regard  to  the  rules  which  govern  the  pleas  of 
autrefois  acquit  and  autrefois  convict  are  highly  important, 
and  in  this  case  he  introduced  the  principle  that  a  convic- 
tion for  a  higher  crime  than  that  charged  in  the  indictment, 
and  therefore  unlawful,  does  not  exempt  from  a  second 
prosecution  for  the  offense  for  which  the  party  was  in- 
dicted. 

No  provision  has  ever  been  made  by  law  for  the  publica- 
tion of  the  decisions  of  the  Court  of  Appeals  in  civil  cases, 
although  questions  of  new  impression  and  of  the  greatest 
importance  are  constantly  brought  before  that  tribunal  and 
stamped  by  its  decisions  upon  the  jurisprudence  of  the 
State.  To  remedy  this  unaccountable  legislative  indiscre- 
tion, Judge  White,  in  conjunction  with  Judge  S.  A.  Will- 
son,  prepared  and  published  at  their  own  expense,  in  1883, 
a  report  of  the  leading  civil  cases  decided  by  that  court. 
This  is  a  work  of  great  merit.  It  combines  the  features  of 
a  report  and  digest,  and  presents  in  convenient  sections  a 
full  and  clear  exposition  of  the  law  in  connection  with  a 
summary  of  the  facts  which  gave  rise  to  the  principle 
enunciated.  These  sections  are  indexed,  so  that  the  practi- 
tioner can  readily  examine  any  question  without  reference 
to  other  features  of  the  case.     This  novel   and  happy  de- 


JOHN    P.   WHITE.  337 

aign  affords  a  utility  which  greatly  enhances  the  value  of 
the  work,  which  altogether  make  it  an  indispensable  addi- 
tion to  every  law  library  in  the  State,  and  useful  as  an  an- 
alysis of  principle  to  any  practitioner. 

While  precluded  by  the  proprieties  of  his  office  from  any 
active  participation  in  politics,  he  is  a  thorough  Democrat  in 
his  views,  and  during  the  civil  war  was  a  strong  Southerner 
in  his  sentiments.  He  entered  the  Confederate  service  at 
the  beginning  of  the  war  as  captain  of  a  company  in  the 
Sixth  Kegiment  of  Texas  infantry,  and  never  permitted 
either  hardship  or  defeat  to  chill  his  ardor  or  cloud  his 
hopes  until  the  final  consummation  of  the  issue.  In  the 
battle  of  Arkansas  Post  he  was  taken  prisoner  and  confined 
at  Camp  Chase  until  the  battle  of  Chancellorville,  when  he 
was  exchanged  and  ordered  on  duty  in  the  Trans-MississippL 
department,  and  at  the  close  of  the  war  resumed  the  prac- 
tice of  law  at  Seguin. 

While  he  is  a  man  of   marked  firmness  and  candor,  he 
is  amiable  and  obliging  in  his  disposition,  polite  and  cour- 
teous in  his  professional  ethics  and  social  manners,  and  is 
an  honor  to  the  bench  over  which  he  presides. 
22 


338  BENCH  AND  BAR  OF  TEXAS. 


Samuel  a.  willson. 


Samuel  Andrew  Willson,  one  of  the  judges  of  the  Texas 
Court  of  Appeals,  was  born  in  San  Augustine  County, 
Texas,  on  the  9th  of  January,  1835,  where  his  father,  Ste- 
phen Pelham  Willson,  who  was  a  native  of  Delaware  county, 
New  York,  and  a  physician  by  profession,  settled  in  1831. 
His  mother,  whose  maiden  name  was  Mary  Richardson 
Davis,  was  a  native  of  Georgia,  and  a  rehitive  of  Hon.  Jef- 
ferson Davis.  His  education  was  confined  to  the  advantages 
afforded  by  the  country  schools  of  Texas  until  he  arrived  at 
the  age  of  fifteen  years,  when  he  abandoned  his  academic 
pursuits  and  began  the  study  of  law  in  the  office  of  Hon. 
M.  Priest,  of  Woodville,  Texas.  In  1852,  when  but  seven- 
teen years  of  age,  he  was  admitted  to  the  bar  by  authority 
of  a  special  act  of  the  Legislature  relieving  him  of  the 
disabilities  of  minority,  and  immediately  entered  upon  the 
practice  of  his  profession  at  Woodville.  He  was  endowed 
with  a  capacity  for  intense  labor,  inspired  by  an  ambitious 
thirst  for  knowledge,  and,  subsidiary  to  a  vigorous  and 
intelligent  application  to  the  study  of  law,  he  managed  by 
a  course  of  useful  reading  and  close  observation  to  supply 
the  deficiency  of  his  early  education. 

These  qualities  and  habits  promoted  an  advancement 
which  soon  commanded  public  recognition  of  his  ability  and 
sterling  traits  of  character,  and,  in  1856,  he  was,  at  the  age 
of  twenty-one  years,  elected  districtattorney  of  the  Fifteenth 
Judicial  District,  and  was  re-elected  to  the  same  office  in 
1858.  The  remarkable  professional  success  of  Judge  Will- 
son  has  been  constant  and  uninterrupted,  except  during  the 
period  of  his  military  service.  He  has  always  been  a 
thorough  Democrat  in  his  political  creed,  and  fidelity  to  his 
State  and  section  of  the  countrv  was  an  innate  and  cherished 


SAMUEL    A.  WILLSON.  339 

quality  of  his  being.  He  enlisted  in  the  Confederate  service 
as  early  as  May,  1861,  as  first  lieutenant  of  a  company  in 
the  First  Regiment  of  Texas  infantry.  In  1862  he  was  made 
captain,  and  served  in  the  army  of  Northern  Virginia  until 
the  battle  of  Gettysburg,  in  which  he  was  taken  prisoner. 
He  participated  in  the  battle  of  Seven  Pines,  the  seven  days' 
fight,  in  the  second  battle  of  Manassas,  and  the  battle  of 
Sharpsburg,  in  the  last  of  which  he  was  severely  wounded, 
and  acted  his  part  in  all  with  marked  gallantry  and  distinc- 
tion. 

At  the  close  of  the  war  he  returned  to  the  practice  of  his 
profession  at  Woodville.  His  great  success  as  a  prosecutor 
had  already  established  his  reputation  as  an  able  lawyer, 
which  was  so  greatly  enhanced  by  other  qualities  of  charac- 
ter, that,  in  1866,  he  was  elected  judge  of  his  district,  but 
in  1868,  when  the  State  was  placed  under  military  rule, 
and  before  he  was  apprised  of  the  designs  of  that  power, 
and  the  policy  of  sweeping  removal  from  office  which  it 
adopted,  he  resigned  in  consequence  of  an  indignant  aver- 
sion to  holding  office  under  such  authority,  and  removed  to 
Eusk,  in  Cherokee  County. 

In  1869  he  was  again  elected  to  the  office  of  district 
attorney,  the  duties  of  which  he  had  so  ably  performed  in 
the  first  years  of  his  majority,  and  served  until  that  office 
was  abolished  in  that  district  by  the  Constitution  of  1870. 
In  1879  he  was  appointed  by  Governor  Coke  one  of  the 
committee  to  codify  the  laws  under  the  new  Constitution, 
and  the  revised  code  owes  much  of  its  merit  to  his  genius 
and  experience.  In  the  spring  of  1882  he  was  appointed 
by  Governor  Roberts  one  of  the  judges  of  the  Court  of 
Appeals,  to  fill  a  vacancy  occaisioned  by  the  death  of  Judge 
Winkler,  and  in  the  fall  of  that  year  was  elected  to  the 
same  position  by  the  people,  and  which  he  still  occupies. 

In  1883  Judge  Willson  prepared  and  published,  in  con- 
junction with  Judge  White,  a  combined  report  and  digest 
of  the  civil  cases  decided  by  the  Court  of  Appeals,  to 
supply  a  want  arising  from  the  lack  of  any  provision  of 
law  for  the  publication  of  the  decisions  of  that  court  in  the 


340  BENCH  AND  BAR  OF  TEXAS. 

civil  branch  of  jurisprudence.  Its  design  is  strikingly 
novel  and  ingenius,  and  it  is  a  work  of  great  merit  and 
ability. 

As  a  lawyer,  his  studious,  painstaking  and  exact  analj'sis, 
his  clear  perception  and  excellent  judgment,  made  him  a 
safe. legal  pilot  and  counselor.  ,  He  possesses  a  thorough 
knowledge  of  legal  principles,  and  these  he  makes  the  basis 
of  the  solution  of  every  question  ;  and,  if  it  be  true  that 
genius  is  a  capacity  for  intense  and  intelligent  labor.  Judge 
Willson  possesses  an  ample  measure  of  that  quality. 
Naturally  vigorous  in  both  his  mental  and  physical  powers, 
he  has  cultivated  the  capacity  for  severe  and  proloncred 
intellectual  labor,  directed  by  a  minute  observation,  a  well 
arranged  and  uniform  method,  a  closely  calculated  accuracy 
and  a  prompt  punctmvlity  and  dispatch. 

As  a  judge  he  is  stern  in  the  performance  of  duty  and  in 
the  pursuit  of  justice.  But  while  his  judgments  are  moulded 
from  an  inexorable  interpretation  of  fact  and  a  strict  and 
logical  application  of  law,  their  frown  is  softened  by  a  con- 
scientious regard  foi*  every  personal  right.  He  never  evades 
a  question,  nor  hesitates  to  front  a  fact,  but  promptly  de- 
cides every  issue  presented  in  a  case,  necessary  to  establish 
a  principle  or  to  determine  the  rights  of  the  parties.  His 
decisions  open  wide  the  door  of  justice,  and  while  he  cites 
authorities  abundantly,  he  does  not  deal  with  a  question 
second-handed  alone,  through  the  perceptions  of  others, 
nor  does  he  see  it  simply  through  the  dusty  glasses  of  prec- 
edent, regardless  of  the  varied  colors  of  circumstance, 
but  impresses  his  decisions  with  his  own  views  and  his  own 
judgment  in  reference  to  the  particular  state  of  facts  in- 
volved. 

Personally,  Judge  Willson  is  a  man  of  exceedingly  kind 
and  amiable  disposition.  Calm,  mild  and  self-possessed, 
he  is  courteous  in  his  manner,  and  a  warm  and  constant 
friend.  He  was  married  in  1853  to  Miss  Susan  E.  Priest, 
an  excellent  and  cultured  young  lady  of  Woodville,  and 
the  daughter  of  his  legal  preceptor.  Since  his  appointment 
to  the  bench  he  has  resided  in  Austin,  where  as  a  citizen  he 


SAMUEL    A.   WILLSOX.  341 

is  no  less  esteemed  than  as  a  judge  of  a  tribunal  whose  pro- 
ficiency and  personnel  might  challenge  comparison  with  any 
court  in  any  country. 

One  of  the  first  important  Judicial  acts  of  Judge  Willson 
was  his  declaration,  in  Williams  v.  The  State,  12  Texas  Court 
of  Appeals,  395,  of  the  unconstitutionality  of  the  act  of  1881, 
known  as  "  the  common  sense  indictment  act."  In  this 
act  the  Legislature  had  authorized  and  prescribed  forms  of 
indictment  dispensing  with  statements  which  at  common 
law  had  always  been  considered  as  essential  to  the  description 
of  the  offense.  In  this  case  he  decided  in  an  able  and  un- 
answerable opinion  that  the  import  and  attributes  of  the 
term  "indictment"  must  be  taken  to  be  the  same  which 
it  bore  when  it  was  adopted  in  the  bill  of  rights,  and  that 
the  Legislature  had  no  power  to  change  them;  nor  could 
the  words,  "take,  steal  and  carry  away,"  or  any  other  like 
terms,  be  construed  by  application  or  intendment  to  con- 
stitute a  sufiicient  description  of  the  crime  of  theft.  This 
was  followed  by  a  number  of  affirmatory  decisions  and  the 
act  was  repealed. 

In  Robertson  v.  The  State,  Ibid.  548,  he  decided  the 
question,  in  regard  to  which  there  were  many  conflicting 
authorities,  that  the  Legislature  can  revoke  an  occupation 
license  at  pleasure,  and  that,  therefore,  the  sale  of  spirituous 
liquors,  under  a  license  previously  granted  in  a  locality  sub- 
jected to  the  operation  of  the  local  option  act,  subjects  the 
vendor  to  the  penalty  of  its  violation.  But  in  his  dissenting 
opinion  in  the  case  of  Holly  v.  The  State,  14  Texas  Court  of 
Appeals,  517,  he  held  that  while  a  reasonable  doubt  must  be 
weighed  in  favor  of  the  validity  of  legislative  acts,  and  that 
an  implication  of  the  want  of  power  in  the  Legislature 
must  be  clear  and  strong  to  authorize  the  judiciary  to 
invalidate  its  acts,  the  clause  of  the  Constitution  requiring 
the  Legislature  to  enact  the  prohibition  of  the  sale  of  in- 
toxicating liquor  under  certain  circumstances,  does  not 
empower  it  to  make  the  simple  gift  of  liquor  an  offense, 
unless  the  gift  was  made  for  the  purpose  of  evading  the 
law. 

Civil  rights  of  negroes.     Cavitt  v.  The   State,  15  Texas, 


342  BENCH  AND  BAR  OF  TEXAS. 

Court  of  Appeals,  196.  In  Texas,  courts  have  no  power 
to  revise  or  control  the  action  of  commissioners  in  the 
selection  of  jurors  unless  in  clear  cases  of  fraud  or  cor- 
ruption, or  of  some  great  wrong  calculated  to  shock  the 
sense  of  justice  or  defeat  the  ends  of  law ;  and  while 
the  statute  does  not  require  the  commissioners  to  consider 
the  question  of  race  or  color  in  the  selection  of  jurors, 
it  does  not  prohibit  them  from  this  discretion.  Upon 
this  subject  the  law  is  wisely  silent. 

In  Shultz  V.  The  State,  15  Texas  Court  of  Appeals, 
258,  he  held  that  the  constitutionality  of  the  statute  au- 
thorizing an  indictment  to  be  substituted  by  the  district 
or  county  attorney  for  an  original  one  which  has  been  lost, 
and  whether  such  substituted  instrument  is  an  indictment 
of  a  g7^and  jury  as  required  by  the  bill  of  rights,  are  open 
questions ;  and  that  it  is  safer  in  such  cases  to  have  another 
indictment  returned  by  the  grand  jury.  When,  however, 
an  original  indictment  has  been  answered  by  plea,  there 
can  be  no  question  that  its  loss  can  be  remedied  by  the 
statutory  method  of  substitution  ;  for,  in  that  case,  no 
right  of  the  accused  is  imperiled. 

The  revisors  of  the  Penal  Code  introduced  a  new  statute, 
before  that  time  unknown  to  the  laws  of  the  State,  makins:  it 
criminal  slander  to  impute  the  want  of  chastity  to  a  female. 
Judge  Willson  wrote  the  first  opinions  construing  this  stat- 
ute, and  in  Layerone  v.  The  State,  12  Court  of  Appeals,  426, 
he  held  that  the  indictment  must  set  forth,  at  least  sub- 
stantially, the  language  or  writing  which  constituted  the 
imputation  ;  and  on  rehearing,  in  Patterson  v.  The  State, 
Ibid.  458,  which  had  been  decided  to  the  contrary  when  he 
came  upon  the  bench,  he  held,  in  an  able  opinion,  that  the 
defendant  in  actions  of  this  character  must  confine  himself 
to  evidence  in  proof  of  the  particular  acts  or  conduct 
upon  wiiich  he  based  his  imputation,  or  of  the  general 
reputation  of  the  female  at  the  time  the  alleged  slander 
was  uttered. 

In  King  v.  The  State,  13  Texas  Court  of  Appeals,  his  opin- 
ion clearly  defines  the  character  of  the  plea  of  self-defense  and 
the   rules  which   govern  it  in  Texas   jurisprudence,  and  in 


SAMUEL   A.  WILLSON.  343 

Jones  V.  The  State,  lb.  1,  he  reviews  the  previous  decisions 
in  regard  to  the  burden  of  proof  and  ably  elucidates  the 
principles  and  rules  which  obtain  in  relation  to  that  subject. 

In  LaNorris  v.  The  State,  13  Texas  Court  of  Appeals,  33, 
the  conductor  in  charge  of  a  Pullman  sleeping  car  was  charged 
with  maintaining  a  bar  and  retailing  intoxicating  drinks  to 
passengers  without  having  paid  the  tax  occupation  required 
by  the  statute.  Judge  Willson  held  that  the  circumstance 
of  locomotion  did  not  prevent  the  liability  of  the  conductor 
and  that  an  employe  who  sells  an  article  when  the  occupa- 
tion tax  is  unpaid  is  equally  liable  with  his  principal.  This 
decision  abolished  the  nefarious  traffic  which  had  become 
prevalent  on  the  railroad  lines  in  the  State. 

In  his  separate  opinion  in  Morgan  v.  The  State,  16  Texas 
Court  of  Appeals,  628,  he  discusses  elaborately  the  new  and 
interesting  question  as  to  the  effect  of  gross  neglect  and 
improper  treatment  of  wounds  in  modifying  the  degree  of 
guilt,  and  construes  the  Texas  statute  to  be  in  contraven- 
tion of  the  common-law  rules  in  regard  to  the  subject,  so 
far  as  to  shift  the  guilt  of  homicide  from  the  person  who 
inflicted  the  wound  to  the  physician  or  surgeon  through 
whose  neglect  or  maltreatment  death  ensues.  In  this  view 
of  the  question  he  received  the  concurrence  of  Judge  White. 

Judge  Willson  has  also  decided  many  important  civil  cases. 
In  G.  C.  &  S.  F.  Eailroad  Company  v.  Graves,  White 
&  Wilson,  Con.  Rep.  301,  he  rendered  the  first  decision  in 
Texas  as  to  the  effect  and  import  of  the  word  damage  in 
the  present  Constitution  of  the  State,  which  has  been 
approved  by  the  Supreme  Court,  in  60  Texas,  656.  His 
opinions  are  all  written  in  a  clear  and  concise  manner,  and 
forcibly  exemplify  his  searching  ability  and  sound  judgment, 
and  those  cited  present  features  of  first  impression  in  the 
jurisprudence  of  the  State.  Being  in  the  prime  of  life  and 
vigor  of  health,  his  judicial  record  predestines  a  future 
usefulness  which  will  add  new  glory  to  the  Texas  bench. 


344  BENCH   AND    BAR    OF   TKXAS. 


J.    M.    HURT. 


James  Mann  Hurt  was  born  in  Carroll  County,  Tennessee, 
on  the  15th  day  of  December,  1830.  His  father,  for  whom 
he  is  named,  was  a  native  of  Virginia,  and  a  Baptist  clergy- 
man, and  his  grandfather,  Philomen  Hurt,  was  a  Virginian 
soldier  in  the  Continental  army,  and  served  under  General 
Green  in  the  battle  of  Guilford  Court  House.  His  mother 
was  a  daughter  of  David  Marshall,  of  Richmond,  Virginia, 
who  removed  at  an  early  day  to  Tennessee,  and  was  one  of 
the  first  settlers  of  the  town  of  Lebanon. 

The  subject  of  this  sketch  was  reared  chiefly  on  a  farm, 
but  enjoyed  good  educational  advantages  at  an  academy  in 
Kentucky,  and  at  Bethel  College.  Having  completed  his 
education  at  the  latter  institution,  he  read  law  three  years 
jn  the  office  of  Hon.  Milton  Brown,  at  Jackson,  Tennessee, 
afterwards  graduated  in  the  law  department  of  Cumberland 
University,  and  in  February,  1857,  received  his  license  from 
the  Supreme  Court  of  Tennessee.  In  1858  he  married 
Miss  Matilda  L.  Douglass,  the  accomplished  daughter  of 
Judge  William  Douglass,  of  Osceola,  St.  Clair  County, 
Missouri,  and  began  the  practice  of  his  profession  at  that 
place,  but  soon  afterwards  removed  to  Sherman,  Texas, 
where  his  energy  and  popular  traits  of  character  soon  gained 
him  friends  and  clients,  and  he  took  a  prominent  stand  at 
the  bar. 

He  had  been  reared  a  Federalist  and  inspired  with  strong 
Union  proclivities,  but  at  the  outbreak  of  the  civil  war  he 
cast  his  lot  with  the  Confederacy,  and  has  since  been  a 
staunch  advocate  of  Democracy.  He  enlisted  in  the  service 
as  captain  of  a  company  of  infantry,  which  he  raised  in 
Grayson  County,  and  which  formed  a  part  of  the  First  Texas 
battalion  of  sharpshooters  in  Maxey's  brigade.     He  was  at 


J.  M.  HURT.  345 

the  siege  of  Port  Hudson,  and  afterwards  served  under 
General  Joseph  E.  Johnston  in  his  campaign  for  the  relief 
of  Vicksburg.  In  December,  1863,  he  was  ordered  with 
his  company  to  the  Trans-Mississippi  department,  and  served 
under  General  Maxey  until  the  surrender,  when  he  marched 
his  company  back  to  Grayson  County,  and  there  disbanded  it. 

In  1866  he  was  a  member  of  the  Constitutional  conven- 
tion, assembled  to  re-organize  the  State  government  under 
the  Johnson  reconstruction,  and  was  an  active  and  efficient 
member,  particularly  in  his  efforts  to  preserve  the  rights  of 
the  people  and  the  dignity  of  the  State.  He  was  soon 
afterwards  appointed  by  Governor  Throckmorton  district- 
attorney,  and  acquired  the  reputation  of  being  one  of  the 
best  prosecutors  in  the  State  ;  but  in  1867,  in  consequence 
of  his  inability  to  take  the  oath  imposed  at  that  time  upon 
Southern  officials,  he  resigned  his  office  and  returned  to  his 
practice. 

In  1870  he  was  re-appointed  by  Governor  Davis,  and 
accepted  the  position  with  the  understanding  that  his  politi- 
cal principles  should  suffer  no  restraint.  This  was  subse- 
quently found  to  be  entirely  imcompatible  with  the  violent 
Republican  policy  of  the  administration,  and,  in  1871,  he 
was  removed  without  notice  to  make  way  for  a  compliant 
incumbent.  On  returning  to  the  bar  he  found  his  practice 
large,  particularly  in  the  criminal  branch  of  the  law,  and  in 
1876  he  removed  to  Dallas,  where  his  practice  embraced  a 
still  larger  field. 

In  1880  he  was  elected  one  of  the  three  judges  of  the 
Texas  Court  of  Appeals,  a  position  which  he  continues 
to  fill  with  ability  and  honor.  He  is  a  man  of  talent, 
a  lawyer  of  ability,  and  a  first-rate  judge.  His  percep- 
tions are  remarkably  quick  and  acute,  and  he  is  an 
excellent  judge  of  law.  His  ready  and  accurate  interpre- 
tation of  the  motives  of  men  and  the  springs  of  human 
action,  his  knowledge  of  the  methods  of  law  by  which 
these  are  reached,  and  its  application  to  all  the  varied 
features  of  crime,  render  him  one  of  the  best  criminal 
lawyers  in  Texas,  and  peculiarly  qualified  for  the  bench  of 
criminal  appeals.  He  seems  to  abhor  mere  technicalities, 
and  during  his  career  upon  the  bench  has  almost  invariably 


346  BENCH  AND  BAR  OF  TEXAS. 

• 

dissented  from  every  opinion  of  his  associates  based  chiefly 
upon  mere  technical  questions.  He  delights  in  pursuing 
the  unhedged  path  of  fact,  and  brushing  away  the  trammels 
of  antiquated  forms,  drive  straight  at  the  crest  of  crime 
and  the  grist  of  the  offense.  Yet,  he  is  an  amiable  and  kind- 
hearted  man,  full  of  good-natured  humor,  and  an  admirable 
companion. 

He  possessed  in  a  high  degree  that  sparkling  mirth  and 
living  amiability  which  laps  away  more  brambles,  levels 
down  more  hillocks,  surmounts  more  obstacles  of  life,  and 
confers  upon  its  possessor  more  true  happiness  than  any 
other  attribute  of  human  nature.  Power  may  reach  the 
limits  of  its  control ;  force  may  blunt  its  weapons  against 
the  dull  hide  of  obstinacy  ;  reason  may  exhaust  in  vain  its 
logic  upon  the  dull  ear  of  perversity,  and  the  unction  of 
suasion  may  congeal  before  the  cold  threshold  of  misan- 
thropy; but  good  nature  wields  a  soothing  influence  over 
the  most  obdurate  circumstance,  and  binds  the  sternest  fate 
a  captive  to  its  charms. 

Notwithstanding  its  discountenance  by  the  mock  dignity 
of  asceticism,  and  the  pharisaical  gravity  of  the  self-right- 
eous, a  merry  humor  rarely  fails  to  find  a  kindling  recipro- 
cation in  the  bosom  of  the  most  embittered  misanthrope. 
It  is  indeed  the  most  efficacious  antidote  to  that  more  preva- 
lent spirit  which  not  only  magnifies  the  ills  of  life,  but 
soars  away  upon  the  wings  of  excursion  in  search  not  of  the 
olive  branch  of  hope,  but  of  the  rising  peaks  of  sorrows 
which  it  knows  not  of. 

The  hilarious  man  dispenses  a  contagious  cheerfulness 
which  penetrates  and  often  dispels  the  most  settled  gloom. 
He  weaves  the  garlands  of  pleasantry  of  the  very  thorns 
of  life,  and  hangs  a  rose  upon  every  thistle.  Such  a  man 
is  truly  a  promoter  of  philanthropy,  and  such  is  in  a  high 
degree  the  character  of  Judge  Hurt.  He  is  always  equally 
apt  and  ready  for  a  capital  trial  or  a  capital  joke. 

At  the  bar  his  main  fort  lay  in  his  art  of  captivating  the 
jury,  an  effect  which  his  humor  and  abundant  store  of 
pleasing  anecdote  rarely  failed  to  accomplish.  In  variety 
of  humor  and  sparkling  repartee  he  is  perhaps  more  like 
Curran  than  any  other  member  of  the  Texas  bar. 


J.  M.  HURT.  347 

His  analysis  of  the  character  and  incidents  of  the  plea  of 
insanity  in  King  v.  The  State,  9  Texas  Court  of  Appeals, 
515,  frojn  which  the  other  judges  dissented,  is  novel  and 
ingenious.     The  chief  question  presented  was  :  — 

When  the  plea  of  insanity  is  interposed,  is  the  burden  of 
proof  on  the  State  to  show  sanity,  or  is  it  on  the  defendant 
to  show  insanity? 

In  discussing  this  proposition  he  said  :  — 

"  Brush  from  this  question  the  dust  of  ancient  days,  sepa- 
rate it  from  its  old  companions,  and  its  solution  is  perfectly 
simple.  Before  entering  upon  an  analysis  of  this  subject, 
permit  us  to  allude  to  some  very  strange  and  inconsistent 
expressions  used  by  the  learned  judges  in  treating  of  this 
question.  The  following  are  of  the  number  alluded  to: 
'As  insanity  excuses  the  commission  of  crime,  on  the  ground 
that  the  actor  is  not  a  responsible  being,'  etc.  '  The  onus 
of  proving  the  defense  of  insanity,  or,  in  the  case  of  lunacy, 
of  showing  that  the  offense  was  committed  when  the  pris- 
oner was  in  a  state  of  lunacy,  lies  upon  the  prisoner.'  '  It 
is  rather  in  the  nature  of  a^j?m  to  the  jurisdiction,  or  a  mo- 
tion to  change  the  venue.  The  defendant,  through  his  coun- 
sel and  friends,  comes  in  and  says  that  he  is  not  amenable 
to  penal  jurisdiction.'  A  very  respectable  volume  could 
be  made  of  such  remaks,  but  those  cited  will  suffice  for 
our  purpose. 

"  Let  us  take  a  steady  look,  for  a  moment,  at  these  propo- 
sitions. For  example,  take  the  first.  What  sane  mind  can 
comprehend  the  possibility  of  a  crime  being  committed  by 
an  insane  person  ?  If  the  prisoner  is  insane,  there  is  no 
crime.  If  there  be  crime,  there  is  no  insanity.  Insanity 
can  not  excuse  crime,  from  the  fact  that,  if  insane,  there  is 
no  crime  to  be  excused.  These  observations  apply  to  the 
second.  Now  to  the  third :  '  Plea  in  the  nature  of  a 
plea  to  the  jurisdiction.'  This  plea  never  draws  in  issue 
the  guilt  of  the  prisoner.  Under  this  plea,  sanity  or  insan- 
ity ivoidd  be  the  issue,  separate  and  independent  from  the 
question  of  guilt,  to  be  determined.  But  the  court  has 
jurisdiction  of  the  crime,  if  any  has  been  committed ;  and 
how  are  we  to  sever  the  one  from  the  other?     Shall  we  first 


348  BENCH  AND  BAR  OF  TEXAS. 

try  the  question  of  sanity,  and  then  that  of  guilt?  Not  so  ; 
for  on  the  threshold  we  are  met  with  the  fact  that,  under 
the  plea  of  not  guilty,  evidence  on  the  question  of  sanity 
can  be  introduced.  Behold  what  darkness  and  confusion 
surround  the  question  of  sanity  !  a  subject  around  which 
gather  more  vagaries  and  inconsistencies  than  infest  any 
other  question  in  the  whole  range  of  criminal  jurispru- 
dence. 

"  But  what  shall  be  said  upon  the  proposition  that  the  plea 
is  '  in  the  nature  of  a  motion  to  change  the  venue?'  If 
there  is  the  faintest,  the  most  remote  analogy  existing  be- 
tween the  plea  and  a  motion  to  change  the  venue  of  a  case, 
we  frankly  confess  our  inability  to  trace  it.  We  had  thought 
the  object  of  a  motion  to  change  the  venue  Avas  to  remove 
a  cause  from  the  county  in  which  the  indictment  was  found 
to  some  other  one  for  trial,  and  that  the  ground  of  removal 
was  based  upon  the  fact  that  an  impartial  trial  could  not  be 
had  in  the  proper  county  —  that  in  which  the  indictment 
was  found.  To  what  court  or  county  shall  it  be  taken? 
Will  not  the  same  reasons  for  the  change  be  found  in  the 
court  or  county  to  which  it  is  transferred?  Most  unques- 
tionably they  will.  These  conclusions  being  true,  the  case 
could  only  find  a  court  of  last  resort  in  the  tribunal  of 
heaven.  This  would  defeat  the  ends  of  human  justice,  since 
the  primal  idea  upon  which  it  is  based  carries  with  it  the 
further  idea  of  human  expiation  for  human  wrong. 

"  Those  strange  and  inconsistent  expressions  which  we  find 
in  the  writings  of  eminent  text-authors  are  the  legitimate 
ofispring  of  fundamental  error  which  underlies  their  treat- 
ment of  this  entire  subject,  and  we  merely  allude  to  them 
here  to  intensify  and  concentrate  attention  upon  this  parent 
error,  from  whose  fruitful  loins  have  sprung  all  of  these  ill- 
considered  statements  upon  this  question  of  sanity.  In 
jurisprudence  nothing  can  be  more  valuable  than  terse  state- 
ments of  principle.  On  the  other  hand,  hastily  conceived 
and  unhappily  worded  enunciations  not  infrequently  open 
the  flood-gates  of  litigation,  with  its  vast  attendant  expense, 
and  lead  to  judicial  murder  under  all  the  forms  and  solemni- 
ties of  the  law. 


J.  M.  HURT.  349 

*'  The  fiillacy  of  this  fundamental  error  can  be  made  more 
fully  to  appear  by  comparing  two  propositions  :  — 

"  1.  Sanity  is  an  inherent^  intrinsic  element  of  crime. 

"2.  Sanity  is  not  an  inherent  and  intrmsic  element,  but 
is  extrinsic  and  independent  of  the  crime. 

"  The  last  proposition  contains  a  monstrous  fallac}',  the 
fruits  of  which  are  visible  in  so  many  of  the  text-books,  and 
which  are  followed  out  in  manj'  of  the  enunciations  in  the 
adjudicated  cases.  If  sanity  is  an  inherent  element  of 
crime,  no  well-ordered  mind  can  stop  short  of  the  conclu 
sion  that  the  State  must  carry  its  burden  and  prove  it. 
Feelins:  the  force  of  this,  writers  have  treated  it  as  an  ex- 
trinsic  matter,  separate  and  distinct  from  the  question  of 
guilt,  and  hence  those  strange  and  incomprehensible  expres- 
sions above  referred  to. 

"  Let  us  pay  our  re&pects  to  this  last  proposition,  and  see 
if  from  a  bare  touch  it  will  not  crumble  to  dust.  '  Sanity 
is  extrinsic.^  Therefore  the  prisoner  is  to  be  tried  for  the 
act,  and  the  question  of  intent  or  malice  is  not  drawn  in  is- 
sue. This  for  the  simple  reason  that  an  issue  formed  upon 
the  question  of  intent  or  malice  irresistibly  includes  that  of 
sanity ;  for  there  can  he  no  intent  or  malice  without  sanity. 
Therefore  it  follows  from  this  erroneous  position  that  the 
jury,  in  viewing  the  act  sought  to  be  punished,  must  strip  it 
of  the  intent  which  prompted  it,  and  look  alone  to  the  act. 
To  this  we  enter  our  solemn  protest. 

"  We  now  invite  attention  to  what  we  believe  to  be  the  true 
position,  whi<;h  is  that  sanity  is  an  inherent,  intrinsic,  and 
necessary  element  of  crime.  Is  this  a  correct  proposition? 
Is  it  not  a  self-evident  proposition?  If  murder  can  be  com- 
mitted without  intent  or  malice,  then  the  jDroposition  is 
false  ;  if  not,  it  is  true.  But  we  do  know,  if  it  be  possible 
to  know  anything,  that,  to  constitute  murder,  the  act  of 
killing  must  be  attended  not  only  with  the  intent  to  kill, 
but  with  malice;  and  Ave  also  know,  with  the  same  degree 
of  certainty,  that  there  can  be  no  intent  or  malice  without 
sanity.  It  therefore  follows,  beyond  any  shadow  of  doubt, 
tiiat  sanity  is  an  inherent,  intrinsic,  and  necessary  ingredi- 
ent of  crime. 


350  BENCH  AND  BAR  OF  TEXAS. 

"  We  now  return  to  the  first  proposition  stated  at  the  be- 
ginning of  this  opinion,  which  is  as  follows:  'When  the 
plea  of  insanity  is  interposed,  is  the  burden  of  proof  on  the 
State  to  show  sanity,  or  is  it  on  the  defendant  to  prove  in- 
sanity ?  '  We  have  thus  stated  the  proposition  because  we 
find  it  so  stated  in  the  books,  but  it  is  not  a  practical  one. 
There  is  no  such  plea  known  to  our  Code  as  applicable  to  a 
trial  of  a  criminal  cause.  We  have  four  pleas  —  two  spe- 
cial, and  the  pleas  of  '  guilty  '  and  '  not  guilty  '  —  and 
this  plea  of  '  not  guilty '  is  a  denial  of  every  material  alle- 
gation in  the  indictment.  Under  it,  evidence  to  establish 
the  insanity  of  the  defendant,  and  every  fact  whatever  tend- 
ing to  acquit  him,  maybe  introduced.  It  follows  that  under 
this  plea  the  defendant  denies  every  constituent  element  of 
the  offense  charged,  and  this  plea  of  '  not  guilty '  is  the 
same  as  if  the  defendant  had  denied  specifically  each  ele- 
ment of  the  crime  charged. 

"  This  leads  us  to  the  consideration  of  the  charge  in  this 
case,  which  is  murder,  and  is  defined  thus  :  '  Every  person 
with  a  sound  memory  and  discretion  who  shall  unlawfully 
kill  any  reasonable  creature  in  being,  within  this  State,  with 
malice  aforethought,  either  express  or  implied,  shall  be 
deemed  guilty  of  murder.'  From  this  definition  it  follows 
that,  to  constitute  this  offense,  the  slayer  must  be  '  of  sound 
memory  and  discretion  ;  '  a  '  reasonable  creature '  must 
be  slain,  and  the  slayer  must  be  actuated  by  «  malice.' 
We  have  then,  first,  '  sound  memory  '  in  the  slayer;  sec- 
ond, a  '  reasonable  creature '  slain ;  and  the  slayer 
prompted  by  '  malice.'  These  constitute  murder,  and 
nothing  less  than  all  these  can  constitute  murder.  By  what 
principle  of  logic,  reason,  or  justice  can  either  of  these  ele- 
ments be  eliminated  from  the  offense?  From  this  it  follows 
that  an  indictment  charging  this  offense  embraces  all  the 
above  elements,  whether  specifically  named  or  not;  and 
though  the  indictment  omits  to  chars^e  that  the  defendant 
was  of  'sound  memory,'  yet  charging  'malice,'  sanitij 
is  necessarily  included.  The  problem  which  equals  mur- 
der is  composed  of  three  members:   First,  'sound    mem- 


J.  M.  HURT.  351 

ory  '  of  slayer;  second,  'reasonable  creature'  slain;  and, 
third,  '  malice  '  in  the  slayer. 

"  Let  us  see  if  we  can  eliminate  from  this  problem  one  of 
these  members,  and  leave  every  element  of  the  offense  in 
the  problem.  There  can  be  no  'malice'  without  sanity  ; 
hence,  '  malice  '  includes  sanity.  We  therefore  have,  first, 
a  '  reasonable  creature  '  slain  ;  second,  a  malicious  slayer  — 
murder.  Hence  the  charge  in  the  indictment,  that  the  kill- 
ing was  with  '  malice  aforethought,'  charges  the  slayer  to 
be  of  '  sound  memory  and  discretion.'  If  this  conclusion 
is  not  correct,  we  most  unhesitatingly  assert  that  the  mdict- 
ment  is  worthless  ;  for  we  have  found,  under  our  Code, 
sanity  to  be  an  element  of  murder^  and,  by  well-settled 
rules  of  criminal  pleading,  an  indictment  which  fails  to 
embrace  in  its  allegations  all  of  the  constituent  elements  of 
the  offense  is  fatally  defective.  The  authorities  approach 
nearer  to  unanimity  upon  this  question  than  any  other 
known  to  us. 

"If  the  above  analysis  be  correct,  and  we  think  it  is,  it 
devolves  upon  the  State  to  prove  every  inherent  element 
of  the  offense  ;  and  as  we  have  found  sanity  to  be  such 
an  element,  it  rests  upon  the  State  to  prove  sanity. 
Still  holding  with  a  firm  grasp  the  proposition  that  sanity 
is  an  inherent  element  of  the  offense,  and  as  there  is  no 
such  thing  in  law  as  separating  the  elements  of  an  offense 
so  as  to  cast  the  burden  of  a  part  upon  the  State,  and,  as  to 
the  rest,  to  require  the  defendant  to  take  the  burden  of 
proving  a  negative,  it  follows  that  the  existence  of  each  ele- 
ment is  an  affirmative  proposition,  the  proof  of  which  rests 
with  the  State.  The  idea  that  the  burden  of  proof  shifts 
is  in  direct  conflict  with  the  philosophy  of  criminal  juris- 
prudence, and  at  war  with  fundamental  principles  ;  for  we 
hold  that,  with  regard  to  necessary  ingredients,  it  never 
shifts.  If  two  or  more  elements  constitute  an  offense, 
which  of  these  elements  must  be  proven  by  the  State,  and 
which  must  be  proven  not  to  exist  by  the  defendant?  If 
elements,  do  they  not  all  stand  upon  the  same  plane,  or  are 
there  some  which  prove  themselves?  If  there  are,  they  are 
not  elements.     Are  we  to  require  the  defendant  to  prove  the 


352  BENCH  AND  BAR  OF  TEXAS. 

non-existence  of  that  element  —  insanity  —  upon  which  in- 
tent and  malice  depend,  and  yet  hold  the  State  to  prove  in- 
tent and  malice'^  To  us  it  is  impossible  to  harmonize, 
logically,  these  positions. 

"  We  are  now  led  to  meet  the  most  plausible,  difficult,  and 
potent  position  which  can  be  assumed  upon  the  other  side. 
And  here  we  concede  that  it  is  supported  by  the  weight  of 
authority  ;  but  we  do  not  think  it  is  founded  in  principle, 
and  if  not  founded  in  principle,  to  follow  would  be  danger- 
ous. It  is  this:  The  fact  of  killing  being  admitted,  and 
that  beyond  doubt  the  prisoner  did  the  killing,  and  sanity 
being  the  normal  condition  of  all  persons,  the  law  presumes 
the  prisoner  sane  until  he  shows  to  the  contrary  ;  and  there- 
fore the  burden  of  proving  insanity  rests  with  the  prisoner. 
It  will  be  seen  at  once  that  the  struggle  is  with  this  pre- 
sumption of  sanity. 

*'  Let  us  move  quietly  but  closely  up  to  this  gentleman, 
and  try  to  see  who  he  is.  The  name  of  this  witness  is  pre- 
sumption. He  is  a  venerable  gentleman.  He  was  contem- 
porary witn  the  first-born  principles  of  enlightened 
jurisprudence.  For  truth  and  integrity  he  has  never  been 
excelled  by  any  witness.  His  means  of  knowledge  are  un- 
surpassed, having  for  a  foundation  the  laws  of  nature,  and 
the  truth  of  his  evidence  is  corroborated  by  the  experience 
of  man  through  all  ages.  The  effect  of  his  evidence  is  the 
production  of  not  only  a  mere  prima  facie  case,  but  full  and 
complete  conviction  when  not  opposed.  Upon  his  evidence 
alone,  when  not  contradicted,  sanity  being  the  only  issue, 
man  has  been  made  to  expiate  the  violated  law  with  his  life. 
When  he  speaks  to  the  sanity  of  the  prisoner,  his  evidence 
meets  with  an  approving  response  in  the  mind  of  every  in- 
telligent and  honest  juror,  for  their  experience  corroborates 
his  testimony.  But  he  is  not  infallible.  He  never  testifies 
to  the  sanity  of  any  particular  individual.  He  is  never 
jwsilive,  but  alwaj^'s  presumptive  evidence.  Sanity  being 
the  normal  condition  of  man,  he  presumes  that  to  l)e  the 
condition  of  the  prisoner.  With  the  parents  or  relatives  of 
the  prisoner  he  is  not  acquainted.  He  is  not  aware  of  the 
fact  that  perhaps  some  of  the  prisoner's  blood-relatives  are 


J.  M.   HURT.  353 

\V)\x  inmates  of  an  asylum  for  the  insane.  Though  his  locks 
are  bleached  by  the  winters  of  ages  ;  though  he  has  never 
been  charged  with  prejudice,  and  though  his  evidence  is 
supported  by  the  laws  of  nature  and  corroborated  by  the 
experience  of  man,  yet  he  is  somewhat  arbitrary.  He  places 
the  prisoner  in  the  normal  condition  of  man,  which  is  san- 
ity, and  demands  of  him  the  same  conduct  whether  sane  or 
insane.  He  never  heard  of  insanity,  because  he  speaks 
alone  from  the  laws  of  nature,  and  insanity  being  an  excep- 
tion to  the  natural  rule,  they  are  unacquainted.  With  the 
prisoner's  language,  conduct,  or  misfortunes  he  has  nothing 
to  do,  and  of  them  he  is  entirely  ignorant.  Yet  he  holds 
him  with  an  iron  grasp  to  the  law^s  of  nature  and  the  expe- 
rience of  man.  Is  he  omnipotent?  How  many  witnesses 
are  necessary  to  measure  arms  with  this  Titan?  Does  he 
partake  of  the  kingly  character,  and  can  he  '  do  no  wrong?  ' 
Upon  the  testimony  of  one  witness  alone,  the  prisoner  may 
be  legally  convicted  and  executed.  Can  this  gentleman's 
evidence  accomplish  more?  In  no  case  can  he  accomplish 
more  than  can  be  effected  by  the  evidence  of  one  wimess. 
We  do  not  mean  the  evidence  of  any  witness.  Can  the 
evidence  of  one  witness  ever  be  an  overmatch  for  him? 
In  some  cases  it  legally  and  justly  can  ;  in  others  the  testi- 
mony of  scores  will  not  suffice,  this  depending  always 
upon  the  character  of  the  witnesses,  their  means  of  knowl- 
edge, and  the  facts  sivorn  to. 

"  Having  endeavored  to  become  somewhat  acquainted  with 
this  witness  j^'f^ sumption,  we  now  desire  to  call  special  at- 
tention to  a  very  remarkable  feature  of  his  character.  It 
is  conceded  by  all  that  his  evidence  is  relied  upon,  and  is 
absolutely  necessary  to  convict,  in  a  great  many  cases 
in  which  the  question  of  sanity  is  not  involved.  It  is  also 
conceded,  under  our  decisions,  that  in  tliese  very  cases  the 
burden  of  proof  does  not  shift,  but  remains  with  the  State 
throughout.  Now,  upon  what  principle  of  logic  or  justice 
can  we  give  to  this  presumption  so  much  power  in  a  case 
involving  the  question  of  sanity  as  to  sJiift  the  burden  to 
the  prisoner,  and  in  the  other  cases  hold  that  it  does  not 
shift?'' 

23 


354  BENCH  AND  BAR  OF  TEXAS- 


A.    S.    WALKER. 


This  excellent  judge  and  profound  lawyer  was  born 
near  Brownsburg,  in  Rockbridge  County,  Virginia,  on  the 
eighteenth  day  of  August,  1826.  His  parents  were  of 
Scotch-Irish  descent,  and  his  father  was  a  farmer.  His 
opportunities  for  an  education  were  ample,  and  he  gradu- 
ated in  1850  at  Hanover  College,  Indiana,  from  which  he  re- 
ceived the  degree  of  Master  of  Arts  in  1854.  He  immigrated 
to  Texas  in  January,  1852,  and  taught  school  at  Manayunk, 
on  the  San  Jacinto  River,  in  Harris  County,  and  while 
thus  engaged  prepared  himself  for  the  bar  under  the  advice 
of  David  G.  Burnett  and  J.  Pinckney  Henderson,  who  also 
gave  him  the  use  of  their  books.  In  January,  1853,  he 
obtained  his  professional  license  from  Judge  C.  W.  Buckley, 
at  Houston,  and  in  July  located  at  Georgetown,  where  he 
was* soon  afterwards  appointed  district  clerk  by  Judge 
R.  E.  B.  Baylor  to  fill  the  vacancy  of  a  fractional  term  in 
that  oiEce,  occasioned  by  the  resignation  of  the  incumbent. 
In  1854  he  began  his  practice  at  the  bar,  and  in  1858  was 
elected  district  attorney  of  the  Seventeenth  Judicial  Dis- 
trict. In  1862  he  was  elected^  district  judge,  but  was 
removed  from  the  bench  in  1865  by  the  military  power  as 
an  impediment  to  reconstruction. 

While  at  the  bar  of  Georgetown  Judge  Walker  was 
associated  with  A.  J.  Strickland,  and,  after  his  death, 
formed  a  copartnership  with  Colonel  Richard  Sansom,  to 
which  A.  H.  Chalmers  was  subsequently  admitted.  In 
1865,  having  associated  with  Morrison  H.  Bowers,  he  re- 
moved to  Austin,  and  after  his  death,  in  1872,  he  formed 
a  copartnership  with  Judge  A.  W.  Terrell,  which  continued 
until  he  left  the  bar. 

On  the   organization    of    the    Court  of   Commission  of 


A.  S.  WALKER.  355 

Appeals,  in  1879,  he  was  appointed  by  Governor  Eobeits 
one  of  the  judges  of  that  bench ;  but  held  his  office  onl}^  a 
short  time  before  he  resigned  in  order  to  accept  that  of  dis- 
trict judge,  to  which  he  had  been  elected  by  the  people  of  the 
Sixteenth  Judicial  District,  without  canvass  or  solicitation. 
In  1884  he  was  re-elected  without  opposition,  and  holds 
that  position  at  the  present  time. 

The  ruling  traits  of  his  character  are  a  deep  love  of 
justice,  an  unswerving  integrity,  and  an  abiding  strictness 
in  the  performance  of  duty.  He  is  a  thorough  master 
of  the  principles  of  law,  untiring  in  his  search  for  truth, 
calm  and  conscientious  in  his  conclusions,  and  no  art  of 
casuistry  can  induce  him  to  abandon  an  opinion  formed 
from  an  impartial  judgment,  and  fortified  by  reason  and 
sound  sense.  Yet  he  is  patient  and  courteous  in  his  defer- 
ence to  the  opinions  of  others  and  to  the  views  of  opposi- 
tion ;  and  Avhile  he  is  firm  in  maintaining  his  own  honest 
convictions,  he  never  challenges  the  sincerity  of  others. 

These  traits  eminently  qualify  him  for  the  bench,  and 
few  judges  ever  enjoyed  greater  confidence  on  the  part  of 
both  the  bar  and  the  people.  His  opinions  are  generally 
accepted  as  conclusive  of  the  questions  at  issue,  and  as 
lights  along  the  path  of  justice.  While  he  is  stern  and 
inflexible  in  the  enforcement  of  the  law,  his  opinions  are 
always  so  tempered  witli  manifest  rectitude  and  impar- 
tiality that  they  receive  the  homage  of  satisfaction  from  the 
most  disappointed  client. 

Judge  Walker  brings  these  traits  of  his  character  to  bear 
equally  upon  all  his  dealings  with  men,  and  in  all  the 
relations  of  life  his  actions  are  guided  by  the  beacons  of 
duty  which  swing  from  his  judicial  censor  and  illumine 
the  bench. 


356  BENCH  AND  BAR  OF  TEXAS. 


GEORGE  Clark. 


The  subject  of  this  sketch  was  born  in  Eutaw,  Ahibama, 
on  the  18th  day  of  July,  1841.  His  father,  James  B,  Clark, 
was  a  native  of  Pennsylvania,  and  a  lawyer  by  profession. 
He  removedto  Alabama  in  1822  and  became  a  distinguished 
judge  in  that  State  where  he  presided  as  chancellor  for 
nearly  eighteen  years,  and  died  in  1873  at  an  extreme  age. 
His  mother  was  formerly  Mary  Erwin,  a  native  of 
Virginia. 

George  Clark  received  the  best  training  afforded  by  the 
schools  of  his  native  town  and  completed  his  education  at 
the  University  of  Alabama,  where  he  also  studied  law; 
but  in  June,  1861,  he  abandoned  his  studies  and  enlisted  in 
the  Confederate  army  as  lieutenant  in  the  Eleventh  Regi- 
ment of  Alabama  infantry,  and  in  1862  was  promoted  to 
the  rank  of  captain.  He  participated  in  all  the  great  battles 
of  the  Army  of  Northern  Virginia,  was  wounded  at  Gaines' 
Mill,  Gettysburg  and  Ream's  Station,  and  stood  in  the  last 
defiant  line  at  Appomattox. 

At  the  close  of  the  war  he  returned  to  Alabama,  and  in 
1866  was  admitted  to  the  bar,  and  began  the  practice 
of  his  profession  at  Eutaw;  in  January,  1867,  he  removed 
to  Texas  and  located  at  Weatherford,  but  in  December, 
1868,  settled  permanently  at  Waco,  where  he  still  resides, 
in  the  enjoyment  of  a  large  practice. 

During  the  trouble  with  the  Radical  incumbents,  occasioned 
by  the  installation  of  Governor  Coke  and  the  Democratic 
State  ticket,  in  1874,  he  was  placed  temporaril}^  in  charge 
of  the  office  of  Secretary  of  State  under  the  incoming 
administration,  and  was  soon  afterwards  made  Attorney- 
General  of  Texas,  which  position  he  held  until  1876,  when, 
his  office  being  vacated    by    the  intervention   of  the    new 


GEORGE    CLARi^.  357 

Constitution,  he  was  appointed  one  of  tlie  committee  to 
revise  the  laws  of  the  State.  In  1879  he  was  appointed 
one  of  the  judges  of  the  Court  of  Appeals,  but  resigned  in 
October,  1880,  and  has  since  that  time  devoted  himself 
exclusively  to  his  profession. 

In  all  these  official  stations  Judge  Clark  while  being, 
perhaps,  the  youngest  man  who  had  ever  held  either  of  them 
in  the  State,  performed  his  duties  with  an  ability  and 
fidelity  which  render  his  career  most  honorable  and  brill- 
iant, and  he  is  a  man  to  whom  Texas  may  well  look  for 
eminent  services  in  the  future.  Modest,  retired  and  devoted 
to  the  duties  of  his  profession,  his  qualities  and  success  as 
a  lawyer  engage  the  most  implicit  confidence  of  his  clients, 
and  invite  a  large  patronage. 

His  decisions  upon  the  bench  of  Appeals  evince  a  vigilant 
and  painstaking  research,  present  a  clear  and  conscientious 
exposition  of  the  law,  and  an  unswerving  pursuit  of  justice. 
He  is  a  man  of  great  frankness  and  candor,  and  so  marked 
are  these  traits  of  his  chai'acter,  that  the  author  was,  on  his 
first  acquaintance  with  him,  disposed  to  impute  to  him  also 
an  element  of  captiousness  ;  but  he  soon  found  that  under- 
neath his  open  and  outspoken  exterior  attributes,  no  man 
possessed  a  kinder  heart,  a  more  courteous  gentility,  or  a 
keener  sensitiveness  in  regard  to  the  feelings  of  others,  and 
the  ethics  of  a  true  gentleman. 

He  is  a  lawyer  of  excellent  ability,  and  loves  his  profes- 
sion with  the  fondness  of  a  devotee.  He  sees  in  its  ample 
field  more  than  a  mere  harvest  of  fees  and  political  garlands. 
He  sees  in  it  the  crops  of  noble  possibilities,  of  honorable 
achievement,  of  virtuous  excellence,  the  highest  good  of 
society  —  the  myrtle  as  well  as  the  laurel.  He  possesses 
the  habits  and  powers  of  intense  and  vigorous  application. 
His  perceptions  are  acute  and  concentrative,  and  his  com- 
prehension ready  and  penetrating,  which  with  an  extensive 
and  accurate  knowledge  of  law,  and  sound  judgment,  render 
him  a  safe  counselor  and  a  successful  advocate  ;  and  as  a 
criminal  lawyer,  he  has  few  if  any  superiors  in  the  State. 
His  able  opinion  in  Rothschild  v.  The  State,  7  Texas 
Court  of  Appeals,  519,  settled  a  question   which  had   been 


358  BENCH  AND  BAR  OF  TEXAS. 

held  ill  perplexing  conflict  both  in  Texas  and  other  States. 
This  was  in  regard  to  the  competency  of  a  juror  in  a  crim- 
inal case  who  had  formed  and  expressed  an  opinion  from 
rumor  and  general  report.  The  juror  was  examined  upon 
his  voir  dire  in  the  court  below,  as  follows  :  — 

"  Q-  Would  we  have  to  introduce  evidence  to  change 
your  opinion,  or  would  you  still  entertain  that  opinion  and 
act  on  it? 

"A.  If  the  evidence  comes  in  the  same  as  I  have  heard, 
of  course  I  would  believe  it. 

"  Q-  What  J  want  to  know  is  this:  You  say  that  you 
have  an  opinion — would  you  change  that  opinion  if  we 
were  to  introduce  some  testimony  that  the  man  was  not 
guilty? 

"A.  Yes,  sir;   I  suppose  so. 

"  Q.  If  we  did  not  do  that,  your  opinion  is  formed  con- 
clusively ? 

"A.  If  the  evidence  is  the  same  as  I  have  heard  it. 

"  Q.  Then  you  have  made  that  opinion  an  established 
opinion,  granting  that  the  evidence  is  the  same  as  that  upon 
which  your  conclusion  is  formed? 

"  A.   Yes,  sir. 

"  Q.  Unless  you  hear  something  else,  you  will  maintain 
the  opinion  you  have  ? 

*«  A.  Yes,  sir." 

In  reply  to  a  question  propounded  by  the  court,  the  juror 
stated  that  if  what  he  had  heard  was  true,  then  he  had  an 
opinion,  but  if  it  was  not  true  he  should  not  act  upon  it. 

The  district  judge  overruled  the  objection  for  cause,  and 
the  defend.ant  having  exhausted  his  peremptory  challenges 
upon  others  presented,  who  had  made  similar  statements, 
tile  juror  vras  sworn  in  and  sat  upon  the  trial. 

The  question  of  the  qualification  and  competency  of  ju- 
rors has  been  long  agitated  by  the  courts,  both  of  England 
and  America,  and  since  the  decision  of  Cliief  Justice  Mar- 
shall on  the  trial  of  Aaron  Burr,  who  held  that  "to  have 
formed  and  delivered  an  opinion  was  sufficient  to  exclude 
from  the  jury,  but  that  slight  impressions  on  the  mind  were 
not  sufficient,"  the  question  has  continually  recurred  as  to 


GEORGE    CLARK.  359 

what  constitutes  a  fixed  and  predetermined  opinion  as  dis- 
tinguished from  a  mere  hypothetical  impression.  In  the 
case  of  Ex  parte  Vermilyea,  6  Cowan,  563,  Mr.  Justice 
Woodworth  says  that :  — 

"  To  have  formed  and  expressed  an  opinion  from  a  knowl- 
edge of  the  facts  is  good  cause  of  challenge,  and  it  can  not 
be  material  from  what  source  the  knowledge  was  derived, 
if  the  bias  proceeds  from  a  preconceived  opinion,  it  equally 
affects  the  accused.  Chief  Justice  Spencer,  in  the  case  of 
Vanalstyne,  held  that  if  a  juror  had  formed  and  expressed  his 
opinion  from  a  knowledge  of  the  facts,  or  from  the  informa- 
tion of  those  acquainted  with  the  facts,  it  was  good  cause 
for  challenge,  but  not  if  it  was  formed  from  mere  rumor 
and  report.  Judge  Iredell  declared  in  the  case  of  Fries 
that  '  whenever  a  predetermined  opinion  is  formed  from 
whatever  motives  it  creates  an  improper  bias,  extremely 
difficult  to  get  rid  of,'  and  the  same  doctrine  is  held  by 
Mr.  Justice  Maxey  in  the  case  of  The  People  v.  Mather,  4 
AYendell,  229. 

In  Mississippi  the  question  arose  from  the  peculiar  form 
of  the  interrogatory  put  to  the  juror,  who  was  asked  whether 
he  had  formed  or  expressed,  instead  of  formed  and  ex- 
pressed, an  opinion,  that  would  influence  him  as  a  juror. 
The  court,  on  referring;  to  the  reason  iriven  in  the  books  for 
the  conjunctive  form  of  the  interrogatory  —  that  a  man 
who  has  made  up  his  opinion  and  expressed  it  aloud  is  more 
apt  to  adhere  to  it  than  if  he  had  kept  it  concealed  —  say 
"  This  reason  is  not  satisfactory.  We  think  that  "if  a 
juror  has  made  up  a  fixed  opinion  from  the  knowledge  of 
the  facts,  although  he  has  kept  that  opinion  locked  up  in 
his  own  heart,  he  is  not  a  competent  juror,  but  if  he  has 
onlv  fashioned  in  his  mind  an  opinion  from  report,  and  has 
not  given  utterance  to  that  opinion  it  would  not  be  suffi- 
cient to  exclude  him.  An  impartial  juror  is  one  whose 
mind  is  open  to  receive  the  impressions  to  be  made  by  the 
testimony  ;  one  wdiose  mind  is  poised  upon  the  scales  of  in- 
difference, and  ciipable  of  weighing  the  testimony  adduced 
on  the  trial  in  opposition  to  floating  rumors." 


3()0  BENCH    AND    BAK    OF    TEXAS. 

"  It  is  vain,"  says  Mr.  Bishop,  "for  a  man  to  say,  or 
even  believe,  that  lie  can  judge  impartially  of  a  matter 
which  he  has  already  determined  ;  for  his  mind,  which  ought 
at  least  to  be  a  blank  on  which  the  evidence  might  write  its 
conclusions,  is  already  occupied.  Human  nature,  as  de- 
veloped in  the  average  of  men,  does  not  permit  this.  The 
juror  is  to  hear,  and  then  say,  what  he  believes  ;  but  if  he  be- 
lieves before  hearing  that  only  which  can  lawfully  affect  his 
opinion,  namely,  the  testimony  of  witnesses  in  open  court,  he 
is,  in  legal  reason,  disquahfied  to  hear  and  be  swayed  by  the 
testimony.  It  is  immaterial,  therefore,  whether  the  belief, 
which  comes  not  according  to  law,  is  derived  from  rumor  or 
from  testimony  to  the  statements  of  a  more  reliable  sort." 

In  view  of  these  principles  and  the  dictates  of  justice. 
Judge  Clark  reversed  the  judgment  against  Rothschild  and 
remanded  the  case  for  further  proceedings,  in  accordance 
with  the  forms  of  law.  But  the  victim  of  the  murder  was 
a  lone  and  defenseless  woman,  who  had  but  recently  taken 
up  her  abode  in  the  community.  The  circumstances  of  the 
crime  were  exceedingly  aggravating  and  revolting,  and  so 
strong  was  the  prejudice  and  indignation  of  public  senti- 
ment against  the  criminal  that  the  technicality,  as  it  was 
called,  of  the  decision  which  delayed  the  execution  of  public 
vengeance  met  with  public  disfavor  and,  no  doubt,  contrib- 
uted largely  to  the  defeat  of  his  deserved  renomination  for 
the  ofEce  he  held  —  the  result  of  a  mistaken  public  opinion. 


A.  T.  WATTS.  361 


A.  T.  Watts. 


Arthur  Thomas  AVatts,  one  of  the  judges  of  the  Court  of 
Commission  of  Appeals,  was  born  in  Covington  County, 
Mississippi,  on  the  31st  of  August,  1837.  His  parents 
were-  natives  of  Georgia,  but  settled  in  Mississippi  prior  to 
the  organization  of  the  State  government,  and  in  1841  re- 
moved to  Texas  and  located  in  Polk  County.  Arthur 
received  his  education  at  Zion  Seminary  in  Mississippi,  and 
read  law  under  the  supervision  of  Hon.  John  E.  McNair,  a 
prominent  judge  of  that  State.  He  afterwards  joined  his 
father's  family  in  Texas,  and  was  admitted  to  the  bar  in 
Polk  County  in  1859,  when  he  began  the  practice  of  his 
profession;  but  when  the  war  began  in  1861,  he  returned 
to  Mississippi  and  enlisted  in  the  Sixteenth  Mississippi 
Regiment,  in  which  he  served  as  a  private  during  the  entire 
continuance  of  hostilities,  in  the  Army  of  Northern  Vir- 
ginia. He  was  with  Stonewall  Jackson  during  his  celebrated 
campaign  in  the  valley,  and  shared  in  all  its  glorious  victo- 
ries. He  was  wounded  at  the  second  battle  of  Manassas, 
and  again  at  Spottsylvania  Court-house,  on  the  12th  of 
May,  1864. 

At  the  close  of  the  war  he  returned  to  Texas  and  resumed 
the  practice  of  law.  The  result  of  the  war  had  swept  away 
his  means,  and  he  found  himself  in  necessitous  circum- 
stances ;  but  his  energy  and  determination  overcame  the 
difficulties  which  surrounded  him,  and  success  crowned  his 
professional  efforts.  He  was  a  young  man  of  great  per- 
sonal popularity,  and  his  ability  being  promptly  recognized, 
he  soon  obtained  a  large  portion  of  the  practice  in  his  judi- 
cial district. 

In  1872  he  was  elected  a  member  of  the  Thirteenth 
Legislalure,  and  participated  vigorously   in  the   summary 


3()2  BENCH    AND    BAR    OF    TEXAS. 

repeal  of  the  obnoxious  laws  which  had  been  fastened  upon 
the  people  of  Texas  by  the  corrupt  and  oppressive  policy 
of  Kadical  rule,  and  in  the  new  legislation  necessary  to  re- 
store their  liberty  to  the  people  and  place  the  State  in  its 
former  orbit  of  freedom  and  prosperity.  He  deserved 
particular  credit  for  his  part  in  effecting  an  arrangement 
with  the  Texas  and  Pacific  Railroad,  by  which  land  grants 
were  substituted  for  the  enormous  debt  due  by  the  State  to 
that  corporation,  and  thereby  relieving  the  people  from  an 
intolerable  burden  of  taxation. 

In  1874  he  removed  to  Weatherford,  where  he  enjoyed  a 
fine  practice,  but,  in  1878,  sought  brighter  prospects  in 
Dallas,  where  he  had  many  friends  and  a  more  ample  field. 
In  1880  he  was  appointed  one  of  the  judges  of  the  Court  of 
Commission  of  Appeals,  which  position  he  still  holds  and 
adorns  by  his  energy,  ability  and  devotion  to  its  duties. 


W.  S.  DELANEY.  363 


W.    S.    DELANEY. 


William  Shelby  Delaney  is  a  native  of  Kentucky,  and  was 
born  in  Union  County  on  the  18th  day  of  September,  1825. 
His  father,  Henry  Field  Delaney,  was  a  native  of  Virginia, 
and  at  one  time  a  prominent  lawyer  at  the  Kentucky  bar; 
but  abandoned  his  profession  and  became  a  noted  clergy- 
man of  the  Cumberland  Presbyterian  Church.  His  mother, 
whose  maiden  name  was  Rhoda  Prince,  was  a  native  of 
Princeton,  Kentucky,  a  town  founded  by  her  father  and 
named  after  him.  He  was  one  of  the  first  three  associate 
judges  of  Caldwell  County. 

The  subject  of  this  sketch  was  afforded  good  advantages, 
and  graduated  at  Cumberland  University  at  Lexington, 
Kentucky,  in  1847.  His  scholastic  attainments  were  of  a 
high  order,  and  he  was  elected  professor,  first  of  mathe- 
matics and  then  of  ancient  languages  in  that  colleire. 
While  thus  engaged  he  devoted  his  leisure  time  to  the  study  of 
law,  and  on  being  admitted  to  the  bar  in  1852  he  resigned 
his  professorship  and  began  the  practice  of  his  profession. 
In  1854  he  removed  to  Memphis,  Tennessee,  and  having 
subsequently  located  in  Nashville,  he  removed  in  1860 
from  that  place  to  Columbus,  Texas,  where  he  resided  in 
the  enjoyment  of  a  large  and  successful  practice  until  his 
iiromotion  to  the  bench.  As  a  lawver  Judo;e  DelancA^  has 
been  remarkably  successful.  His  fine  literary  education 
and  scholarly  attainments  enabled  him  to  grasp  the  prin- 
ciples of  law  with  a  scientific  comprehension,  and  to  clothe 
his  arguments  in  cogent  and  logical  terms.  While  devot- 
ing himself  to  the  mastery  of  the  sterner  and  more  solid 
features  of  legal  science  he  has  cultivated  the  embellish- 
ments  of  the  profession,  and  establishes  his  position  by  a 
scholarly  analogy  and  purit^^ 


364  BENCH  AND  BAR  OF  TEXAS. 

He  is  a  man  of  quiet  and  sedate  manners,  totally  devoid 
of  those  traits  which  cherish  a  fondness  for  notoriety  and 
a  love  of  display.  His  mind  is  cast  in  the  mould  of  a 
classic  simplicity,  and  he  delights  in  communing  alone  with 
the  genius  of  his  profession.  The  didactic  qualities  which 
he  acquired  and  cultivated  as  an  instructor  in  the  chair  of 
science  and  literature  make  him  an  excellent  expounder  of 
the  principles  of  law,  as  verified  by  the  scientific  and  logi- 
cal statements  of  his  decisions.  But  while  he  is  imbued 
with  a  spirit  of  studious  inquiry,  and  is  devoted  to  his 
profession,  he^  has  not  sacrificed  to  its  exacting  demands 
the  advantages  presented  to  him  by  other  spheres  of  life. 
While  worshiping  at  the  shrine  of  Mercury,  he  has  also 
propitiated  the  favors  of  Plutus.  He  has  bfeen  a  success- 
ful planter  and  man  of  business,  and  the  reward  of  his 
energy  is  a  handsome  competence. 

In  private  life  his  habits  conform  to  his  professional 
ethics,  and  his  refined  and  unobtrusive,  cheerful,  yet 
reserved  social  qualities  commend  him  as  a  man  of  pure 
and  solid  character,  and  his  integrity,  uprightness  and  learn- 
ing make  him  an  excellent  judge. 


E.  B.  TURNER.  365 


E.    B.   TURNER. 


Ezekiel  B.  Turner,  Judge  of  the  United  States  District 
Court  for  tlie  Western  District  of  Texas,  was  born  in  the 
town  of  Putney,  Windham  County,  Vermont,  on  the  24th 
of  May,  1825.  His  parents  were  also  natives  of  that  State, 
in  which  his  ancestors  hiad  settled  at  an  early  period,  and 
belonged  to  the  sturdy  yeomanry  of  the  country.  His 
education  was  obtained  in  the  common  schools  of  his  native 
town  and  in  Townsend  Academy,  which  he  attended  a 
short  period.  He  studied  law  in  Michigan  with  his  brother, 
J.  W.  Turner,  and  was  admitted  to  practice  in  the  courts 
of  that  State  in  September,  1848.  He  afterwards  held  the 
office  of  justice  of  the  peace,  and  was  subsequently  elected 
prosecuting  attorney  for  the  county  of  St.  Joseph,  Michi- 
gan. 

In  1853  he  emigrated  to  Texas  and  settled  first  in  Will- 
iamson County,  where  he  remained  one  year,  and  then 
removed  to  Austin  and  formed  a  copartnership  in  law,  first 
with  S.  G.  Sneed,  Esq.,  and  subsequently  with  A.  J.  Ham- 
ilton and  F.  W.  Chandler,  which  continued  until  the  out- 
break of  the  civil  war. 

Actuated  by  the  sentiments  inspired  by  his  nativity  and 
early  training,  he  was  opposed  to  a  dissolution  of  the 
Union,  deplored  the  policy  of  secession,  and  took  no  part 
in  the  war.  With  these  views  he  naturally  affiliated  with 
the  Republican  party,  and  in  1866  was  appointed  by  Presi- 
dent Grant  to  the  position  of  United  States  attorney  for 
the  Western  District  of  Texas,  which  he  resigned  to  accept 
the  office  of  attorney-general  under  the  provisional  gov- 
ernment, and  held  this  position  during  the  period  of  recon- 
struction. 

In  1871    he  was   appointed  judge  of  the  Thirty-second 


366  BENCH  AND  BAR  OF  TEXAS. 

Judicial  District  of  Texas,  and  held  this  office  until  the  judi- 
ciary was  made  elective,  under  the  Constitution  of  1875,  when 
he  was  elected  by  the  people  to  the  bench  of  the  Sixteenth 
Judicial  District,  and  was  commissioned  by  Governor  Coke 
in  April,  1876.  While  this  was  a  Democratic  district,  he 
was  elected  as  an  independent  candidate  over  the  regular 
Democratic  nominee  by  a  handsome  majority.  The  district 
was  subsequently  changed,  and  Travis  County,  which  formed 
a  part  of  the  Sixteenth  District  was  declared  a  special  dis- 
trict, and  jurisdiction  conferred  upon  its  courts  to  try  all 
cases  of  perjury  to  land  titles.  Under  this  law  most  of  the 
celebrated  cases  known  as  the  "  Texas  Land  Perjury  Cases  " 
were  tried  before  Judge  Turner  in  the  District  Court  of 
Travis  County,  and  his  scrutiny  and  stern  enforcement  of 
the  law  had  a  salutary  effect  in  putting  a  stop  to  perjury 
of  land  titles  in  the  State. 

In  1880  he  was  appointed  by  President  Hayes  to  the  of- 
fice of  United  States  judge  for  the  Western  District  of  Texas, 
which  position  he  still  holds.  He  was  the  first  United 
States  judge  that  decided  that  the  act  of  Congress  known 
as  "  The  Civil  Rights  Bill,''  was  unconstitutional.  This 
decision  was  made  in  the  case  of  United  States  v.  Washing- 
ton, reported  in  4  Woods  Circuit  Court  Reports,  349,  and 
was  afterwards  confirmed  by  the  Supreme  Court  of  the 
United  States  in  cases  involving  the  validity  of  the  first  and 
second  sections  of  the  act  of  March  1st,  1875,  and  reported 
in  109  United  States  Reports. 

Judge  Turner  has  the  character  of  being  an  excellent  judge 
of  law  and  a  man  of  the  staunchest  integrity.  He  was  mar- 
ried in  1850  to  a  daughter  of  Charles  Dodge  of  Michigan,  and 
this  excellent  lady,  who  has  so  long  shared  and  inspired  the 
brighest  sunshine  of  his  life,  forms  one  of  that  circle  of 
noble  matrons  whose  grace  and  accomplishments  adorn  the 
society  of  Austin. 


Jnlm  W:    Harris 


CHAPTER    YIII. 


THE  STATE  BAR  —  EMINENT  LIVING  LAWYERS — JOHN  W.HARRIS — J.  B. 
8HEPARD  —  VOLNEY  E.  HOWARD  —  FRANK  SEXTON  —  J.  H.  REAGAN  — 
T.  N.  WAUL  —  W.  P.  BALLINGER  —  J.  W.  THROCKMORTON  —  JOHN  HAN- 
COCK—  JOHNSAYLES  —  N.  G.  SHELLY  —  R.  B.  HUBBARD  —  A.  J.  PEELER  — 
WM.  M.  WALTON  —  JACOB  WAELDER — A.  W.  TERRILL  —  GEORGE  GOLD- 
THWAITE  —  N.  W.  BATTLE  —  M.  D.  HERRING  —  CHARLES  STEWART  — 
ALEXANDER  WHITE  —  THOMAS  HARRISON  —  J.  M.  ANDERSON  —  W.  S. 
HERNDON. 


JOHN   w.  Harris. 


This  distinguished  lawyer  was  born  and  reared  in  Nelson 
County,  Virginia,  of  which  his  parents  were  also  natives. 
His  ancestors  for  several  generations  were  sturdy  and  inde- 
pendent farmers  of  the  Old  Dominion.  The  family  came 
from  England  at  an  early  day  and  settled  on  the  James 
River,  east  of  the  Bhie  Ridge,  and  for  the  most  part  within 
sight  of  the  mountains.     Like  all  of  the  old  Eng-lish  fami- 

CD  O 

lies  of  Virginia,  the  Harrisons  were  proud  of  their  origin, 
and  devoted  to  the  interest  of  the  mother  country  until  its 
oppressive  measures  kindled  the  fires  of  liberty  upon  their 
altars;  and  when  the  war  for  independence  broke  out  they 
furnished  many  a  valiant  soldier  to  the  Continental  army. 
The  subject  of  this  sketch  was  placed  at  an  earl}''  age  in 
a  country  school  Avhich  possessed  few  facilities  for  the  pro- 
motion of  either  progress  or  ambition,  and  without  even 
the  incentive  of  rivalry  his  advancement  was  slow.  But 
as  he  approached  the  years  of  manhood  he  began  to  reah'ze 
the  deficiency  of  his  education,  and  reflecting  with  regret 
upon  what  he  conceived  to  be  due  largely  to  his  remissness 
and    want   of    application,  he    determined,  if   possible,  to 

(3C,7) 


368  BENCH  AND  BAR  OF  TEXAS. 

retrieve  his  misspent  time.  But  how  to  accomplish  this  in 
the  most  speedy  and  effectual  manner,  and  what  course 
of  life  he  should  mark  out  for  himself,  were  questions 
necessary  to  be  decided  at  once.  He  had  been  reared  on  a 
farm,  in  the  midst  of  a  community  of  farmers,  but  his 
taste  and  experience  taught  him  that  this  calling  would  not 
satisfy  his  newly  awakened  ambition  and  aspirations,  and 
he  determined  to  prepare  himself  for  the  study  and  practice 
of  law. 

Armed  with  this  resolution,  which  was  but  intensified 
and  strengthened  by  the  difficulties  that  beset  his  wav,  he 
entered  with  vigor  and  zeal  upon  the  chosen  path  of  his 
destiny.  The  first  step  necessary  to  the  most  happv 
accomplishment  of  his  design,  was  to  acquire  a  collegiate 
education.  But  how  to  do  this  was  a  question  of  more 
serious  import  than  any  which  had  yet  presented  itself. 
His  father's  family  was  large,  and  the  income  of  his  farm 
was  small.  He  could  render  him  no  material  a^^sistance. 
But  it  is  the  characteristic  of  genius,  however  trammeled 
by  difficulty,  to  break  forth  from  the  gyves  of  untoward 
circumstance,  and,  spreading  the  Avings  of  resolution,  soar 
away  triumphantly  to  the  sunny  fields  of  success.  Young 
Harris  determined  to  rely  upon  his  own  resources  and  edu- 
cate himself.  His  mother  had  given  him  a  small  body 
of  land.  This  he  made  available  to  some  extent,  and  at 
once  put  his  plans  in  operation.  In  the  fall  of  1830  he 
entered  Washington  College  (now  Washington  and  Lee 
University)  at  Lexington,  Virginia,  in  which  he  pursued 
his  studies  for  two  years  with  the  utmost  diligence  :ind 
success.  Having  at  the  end  of  this  time  casually  met 
some  acquaintances  who  were  attending  the  University 
of  Virginia,  he  was  advised  by  them  to  complete  his 
education  there ;  and  while  the  change,  in  consequence 
of  the  increased  expense  which  it  entailed,  was  more  com- 
patible with  his  ambition  than  with  his  means,  he  was  so 
much  impressed  with  the  superior  advantages  which  the 
University  afforded  that  he  again  bade  defiance  to  fate, 
and  in  September,  1832,  entered  that  celebrated  institu- 
tion, in   which,  for  five  years,  he  prosecuted    his    studies 


JOHN    W.   HARRIS.  369 

with  close  and  vigorous  application.  During  this  time  he 
graduated  in  six  departments  of  the  University,  including 
that  of  law,  in  which  he  attained  distinguished  proficiency. 

Soon  after  leaving  the  University  he  obtained  license  to 
practice  in  the  courts  of  his  native  State ;  but  the  viginti 
annorum  lucuhrationes,  which  custom  at  that  time  required 
of  a  young  man  at  the  bar  of  Virginia,  however  competent 
he  might  be,  before  he  could  expect  to  be  entrusted  with 
important  cases,  caused  many  talented  young  lawyers  to 
seek  more  propitious  and  less  ceremonious  fields.  This 
conventional  and  arbitrary  restraint  was  particularly  repug- 
nant to  the  ardent  spirit  and  impulsive  vigor  of  Mr.  Harris, 
and  in  the  fall  of  1837,  within  a  few  months  after  leaving  the 
University,  he  immigrated  to  Texas  and  located  in  Brazoria 
County,  near  the  mouth  of  the  Brazos  River,  where,  in 
January,  1838,  he  began  the  practice  of  his  profession. 

This  county  was  at  that  time,  perhaps,  the  most  populous 
and  wealthy  in  the  Republic,  and  offered  a  most  promising 
field  to  the  legal  profession.  Titles  to  real  estate  were  often 
conflicting  and  uncertain,  and  the  courts  were  thronged 
with  adverse  claimants  seeking  the  adjustment  of  their 
rights.  The'  professional  services  of  Mr.  Harris  were 
brought  into  immediate  demand.  His  energy  and  talent 
engaged  the  attention  and  confidence  of  clients,  and  he 
soon  found  himself  immersed  in  the  duties  of  an  extensive 
practice. 

Soon  after  he  had  settled  in  Brazoria  he  became  a  mem- 
ber of  the  law  firm  of  Wharton  &,  Pease,  and  after  the 
death  of  Colonel  Wharton,  which  occurred  in  1839,  the  firm 
of  Harris  &  Pease  became  one  of  the  most  noted  in  the 
Republic,  afterwards  one  of  the  most  distinguished  in  the 
State,  and  continued  until  Mr.  Pease  was  elected  Governor 
of  Texas  in  1853.  AVhen  Mr.  Harris  came  to  the  bar  of 
the  Republic  it  contained  but  four  judicial  districts,  which 
extended  over  the  vast  expanse  of  its  inhabited  territory, 
and  it  was  arranged  between  him  and  Mr.  Pease  that  the 
latter  should  remain  permanently  in  Brazoria  while  he 
should  attend  the  courts  of  the  six  counties  composing  the 
district,  and  they  soon  found  themselves  employed  in  most 

24 


370  BENCH  AND  BAR  OF  TEXAS. 

of  the  important  cases  that  came  before  the  various  courts 
of  the  district.  They  began  their  practice  in  the  Supreme 
Court  in  1840,  when  it  was  first  organized.  In  1839  Mr. 
Harris  was  chosen  to  represent  the  county  of  Brazoria  in 
the  first  Legislature  that  convened  at  Austin,  which  had  re- 
cently been  selected  as  the  capital  of  the  Republic.  During 
the  canvass  he  endeavored  to  impress  upon  the  people  the 
propriety  of  abolishing  the  civil  or  Mexican  law  then  in 
force,  which  was  written  in  a  language  unintelligible  to  a 
majority  of  the  citizens,  and  contained  in  books,  for  the 
most  part,  beyond  their  reach,  and  urged  the  adoption  of 
the  common  law  as  the  law  of  the  land.  They  seemed  to 
be  indifferent,  however,  as  to  which  system  should  prevail, 
and  elected  him  untrammeled  by  any  positive  public  ex- 
pression in  regard  to  the  measure.  But  he  made  it  the 
chief  object  of  his  legislative  mission.  Although  there 
were  several  other  eminent  lawyers  in  the  House  of  Repre- 
sentatives, he  was  appointed  by  Hon.  David  S.  Kaufman, 
then  Speaker,  as  chairman  of  the  Judiciary  Committee  of 
that  body.  In  due  time  he  introduced  a  bill  to  repeal  the 
Mexican  laws  and  to  adopt  the  common  law,  and  procured 
the  recommendation  of  its  passage  by  the  Judiciary  Com- 
mittee, it  being  opposed  by  only  two  members,  who  made, 
however,  no  adverse  minority  report.  Considerable  oppo- 
sition to  the  bill  was  soon  manifested  among  the  lawyers  of 
the  House,  based  chiefly  upon  the  ground  that  the  common 
law  was  not  sufficiently  liberal  in  its  provisions  regarding 
the  rights  of  married  women.  This  opposition  was  dis- 
trusted by  General  Houston,  who  gave  his  support  to  the 
measure,  and  its  adoption  was  then  assured.  But  to  obvi- 
ate all  grounds  of  objection,  Mr.  Harris  added  the  feature 
regulating  marital  rights,  and  the  bill  was  passed.  This 
feature  was  incorporated  five  years  later  in  the  first  Consti- 
tution of  the  State,  and  was  pronounced  to  be  a  grand 
discovery  of  the  age.  Similar  provisions  have  since  been 
adopted  by  many  of  the  States  of  the  Union. 

It  next  became  necessary  that  general  statutes  should  be 
enacted  in  modification  and  aid  of  the  common  law  to  make 
it  conform  to  the  state  of  society  and   to   the  government 


JOHN    W.  HARRIS.  371 

and  polity  of  the  Republic,  as  had  been  done  both  in 
England  and  in  the  States.  In  view  of  this  Mr.  Harris  had 
procured  a  copy  of  the  General  Statutes  of  Virginia,  which 
had  been  originally  enacted  in  England  and  adopted  in  Vir- 
ginia during  the  period  of  the  American  Revolution. 
These  had  been  ably  construed  by  the  courts  and  their 
meaning  and  import  well  ascertained  and  settled,  and  Mr. 
Harris  caused  exact  copies  of  them  to  be  made,  which  he 
introduced  as  bills  in  the  House  of  Representatives,  and 
they  were  generally  passed  without  amendment.  But  in 
civil  cases  the  common-law  system  of  pleading  was  rejected, 
and  the  proceeding  by  petition  and  answer  was  retained. 
The  distinction  between  law  and  equity  was  discarded,  and 
the  courts  were  empowered  to  administer  both  without  sep- 
arate dockets,  and  with  the  same  form  of  proceedings,  and 
this  was  found  to  be  a  decided  improvement  upon  the  old 
system,  which  maintained  separate  courts  of  law  and 
chancery,  as  already  described  in  a  preceding  chapter. 

In  1846  Mr.  Harris  was  appointed  Attorney-General  of 
the  new  State  by  J.  Pinckney  Henderson,  the  first  Governor 
of  Texas  after  its  admission  into  the  Union.  This  appoint- 
ment was  made  without  the  least  solicitation  on  his  part,  or 
of  any  of  his  friends,  but,  notwithstanding  the  inadequate 
salary,  he  accepted  the  position.  He  discharged  the  duties 
of  this  office  with  signal  ability,  and  gave  such  general  sat- 
isfaction that  Governor  Wood,  the  successor  of  Governor 
Henderson,  reappointed  him  to  the  position,  declaring,  in 
answer  to  an  urgent  application  for  the  office  by  one  of  his 
strongest  supporters,  that  the  interests  of  the  State  required 
the  services  of  Mr.  Harris. 

He  was  married  in  1852  to  Mrs.  Annie  P.  Dallam,  of 
Matagorda,  Texas,  daughter  of  Hon.  S.  Rhodes  Fisher  and 
Mrs.  Ann  P.  Fisher,  formerly  a  Miss  Pleasants.  They  were 
both  reared  in  Philadelphia,  and  emigrated  to  Matagorda  at 
the  early  period  of  1832.  This  talented  and  noble  lady 
has  adorned  his  home  with  the  most  admirable  graces  and 
accomplishments  of  her  sex. 

In  1854  Gov.  Pease  appointed  him  in  conjunction  with 
James  Willie  and  O.  H.  Hartley,  to  revise  the  laws  of  the 


372  BENCH  AND  BAR  OF  TEXAS. 

State.  The  penal  code  and  code  of  criminal  procedure 
were  prepared  by  Mr.  Willie,  to  the  provisions  of  wliich 
Mr.  Harris  gave  his  assent  without  any  material  alteration 
of  their  features.  The  task  of  preparing  a  code  of  civil 
procedure  was  assigned  to  Mr.  Hartley,  and  that  of  revising 
the  statutes  to  Mr.  Harris.  They  performed  their  duties, 
but  the  Legislature  seemed  to  be  satisfied  with  the  practice 
as  it  existed  and  with  the  general  statutes  previous!}'  en- 
acted, and  the  reports  of  Messrs.  Harris  and  Hartley  never 
received  legislative  action. 

Mr.  Harris  has  always  been  a  Democrat  of  the  purest 
school.  Educated  amid  scenes  impressed  with  the  very 
genius  of  Mr.  Jefferson,  and  under  instructors  whose  sen- 
timents were  moulded  by  his  association  and  influence,  he 
drew  his  political  inspirations  from  the  very  atmosphere  in 
which  the  great  statesman  lived  and  moved,  and  imbibed  his 
principles  from  the  fountains  which  he  struck  from  the 
rock  of  human  liberty.  The  Civil  War  he  deplored  as  un- 
necessary. He  was  devoted  to  the  Union  established  by 
our  fathers,  and  felt  all  the  indignation  of  a  true  Southerner 
when  he  saw  it  fall  under  the  control  of  a  party  avowedly 
inimical  to  the  great  principles  upon  which  it  was  founded; 
and  while  he  was  not  in  favor  of  secession  as  the  proper 
mode  of  redress,  he  acce[)ted  it  as  a  fixed  and  accomplished 
alternative,  and  gave  his  support  to  the  Confederate 
cause. 

When  the  storm  of  revolution  had  passed  away  and  the 
courts  were  reopened,  he  resumed  the  pi'actice  of  his  pro- 
fession in  copartnership  with  Marcus  F.  Mott,  Esq.,  and 
subsequently  associated  with  Branch  T.  Masterson,  Esq.^ 
but  his  private  fortune  was  now  large  and  he  confined  his 
practice  chiefly  to  important  cases  in  the  higher  courts. 

In  1873  he  was  elected*  to  the  House  of  Eepresentatives 
of  the  Fourteenth  Legislature  from  the  counties  of  Galves- 
ton, Brazoria  and  Matagorda.  One  of  the  most  important 
questions  that  came  before  this  body  was  a  proposition  to 
amend  the  Constitution  of  1869,  which  had  been  framed 
under  the  auspices  of  military  rule  by  persons  inimical  to 
the  views  and  sentiments  of  the  people,  and  largely  by  per- 


JOHN    W.  HARRIS  373 

sons  who  had  no  permanent  interest  in  the  State,  and  which 
had  been  adopted  by  the  people  under  the  constraint  of  a 
still  more  distasteful  alternative.  They  had  either  to  accept 
it  or  remain  indefinitely  under  the  galling  3^oke  of  military 
rule.  The  Fourteenth  Legislature,  being  largely  Demo- 
cratic, was  desirous  of  annulling  a  Constitution  which  had 
been  thus  forced  upon  the  people  and  of  affording  them  an 
opportunity  of  adopting  one  of  their  own  choice. 

The  Constitution  of  1869  permitted  amendments  to  be 
made  by  a  joint  resolution  of  the  Legislature  proposing  the 
amending  features  and  their  submission  to  the  vote  of  the 
people.  Under  this  provision,  Mr.  Harris,  who  was  a  mem- 
ber of  the  Committee  of  the  House  upon  Constitutional 
Amendments,  conceived  the  idea  of  readopting  in  this  man- 
ner the  Constitution  of  1845,  which  had  given  general  sat- 
isfaction, which  had  been  thoroughly  construed  by  the 
courts,  and  which  Mr.  Webster  had  declared  to  be  the  best 
that  had  ever  been  Avritten.  Taking  this  Constitution  as  a 
basis,  and  changing  its  features  with  a  sparing  hand,  he 
caused  it  to  be  carefully  printed,  and  then  submitted  it  to 
each  House.  Its  passage  was  recommended  by  a  committee 
of  the  House,  and  afterwards  by  a  joint  committee  of  the 
two  Houses;  but  a  strong  feeling  had  in  the  meantime  arose 
in  favor  of  calling  a  constitutional  convention,  which  finally 
prevailed,  and  the  convention  of  1875  convened  and  framed 
the  present  Constitution  of  the  State.  This  Constitution 
was  in  some  respects  unfortunate.  It  has  never  given  sat- 
isfaction, and  under  its  provisions  amendments  seem  almost 
impossible. 

The  most  important  cases  in  which  Mr.  Harris  has  been 
engaged  were  those  of  Hosmer  v.  De  Young,  1  Texas,  754, 
and  League  v.  De  Young  &  Brown,  2  Texas,  477  ;  and  as 
the  questions  involved  in  these  cases  were  important  in  their 
bearing  upon  the  origin  and  validity  of  a  large  number  of 
land  titles  in  Texas,  the  circumstances  of  the  latter  case 
and  the  points  raised  by  the  respective  counsel,  taken  from 
the  brief  of  Mr.  Harris,  are  given  in  full. 

The  laws  of  the  Republic  of  Texas  gave  to  each  head  of 
a  family,  who   was  a  citizen  at  the   date  of  the   declaration 


374  BENCH  AND  BAR  OF  TEXAS. 

of  independence,  one  league  and  labor  of  land,  and  boards 
of  land  commissioners,  referred  to  in  a  former  chapter, 
were  elected  by  Congress  for  each  county,  whose  duty  was 
to  hear  the  evidence  of  applicants  and  to  grant  certificates 
to  them  for  such  quantities  of  land  as  they  were  respectively 
entitled  to  receive  under  the  provisions  of  the  law.  But  it 
soon  became  apparent  that  some  of  those  boards  had  cor- 
ruptly issued  certificates  to  persons  who  were  not  entitled 
to  them,  and  to  fictitious  persons,  for  many  millions  of  acres 
of  the  public  lands. 

Transfers  of  these  certificates  were  proven,  or  purported 
to  be  proven  or  acknowledged  before  notaries  public,  and 
were  dul}^  certified  for  registration.  The  holders  of  these 
fraudulent  certificates  located  them,  and  required  the  sur- 
veyors to  survey  the  lands  on  which  they  were  located. 

President  Lamar,  foreseeing  that  the  vast  public  lands  of 
the  Eepublic  would  soon  be  appropriated  by  these  fraudulent 
certificates  unless  he  should  interpose  his  power  to  prevent  it, 
issued  his  proclamation  prohibiting  the  granting  of  patents 
upon  all  land  certificates  until  Congress  could  meet  and 
pass  such  laws  as  should  be  found  necessary  for  the  pro- 
tection of  the  public  domain. 

When  Congress  met,  it  passed  the  "  Act  to  detect  fraud- 
ulent land  certificates,  and  to  provide  for  issuing  patents  to 
legal  claimants." 

Under  this  act  three  land  commissioners  were  elected 
for  each  county  in  the  Republic,  who  constituted  the  boards 
of  land  commissioners  of  their  respective  counties. 

Besides  these.  Congress  elected  three  commissioners  for 
the  district  east  of  the  Trinity  River,  and  a  like  number 
for  the  district  west  of  that  river  (commonly  called  boards 
of  traveling  commissioners),  whose  duty  it  was  to  go  to 
each  county  in  their  respective  districts,  and  in  connection 
with  the  county  commissioners,  to  investigate  the  proceed- 
ings of  the  prior  or  first  boards,  and  ascertain  what  certifi- 
cates had  been  properly  issued. 

Such  as  they  found  to  be  legal  and  genuine,  they  were  to 
report  to  the  commissioner  of  the  land  oflice,  so  that  patents 
might  be  issued  upon  them. 


JOHN    W.  HARRIS.  375 

The  law  prohibited  under  heavy  penalties  the  surveying, 
or  patenting  of  lands  upon  any  certificate  not  thus  recom- 
mended. 

It  also  provided  that  the  owner  of  any  unrecom mended 
certificate  might  sue  in  the  District  Court  of  the  county  in 
which  it  was  issued,  to  establish  its  validity. 

Hosner  and  League,  each  holding  a  certificate  which  the 
new  boards  of  commissioners  had  failed  to  recommend  as 
genuine,  or  legal  claims,  and  which  had  not  been  established 
by  suit  in  the  District  Courts,  respectively  made  applica- 
tions to  the  surveyors  for  the  location  and  survey  of  their 
certificates.  This,  under  the  law,  the  surveyor  refused  to 
do.  Each  then  applied  to  the  District  Court  for  a  man- 
damus to  compel  the  surveyors  to  make  the  surveys.  These 
applications  being  refused,  the  holders  of  the  certificates 
applied  to  the  Supreme  Court  of  the  State,  and  the  cases 
were  there  argued  for  the  appellees  by  Mr.  Harris,  as  Attor- 
ney-General, and  the  judgments  of  the  District  Court  were 
affirmed. 

Thomas  M.  League,  took  his  case  by  a  writ  of  error  to 
the  Supreme  Court  of  the  United  States,  before  which  it 
was  ably  argued  by  George  Wood,  Esq.,  of  New  York,  for 
the  plaintiff,  and  by  Mr.  Harris,  for  the  defendant,  w4io 
was  employed  by  the  Governor  as  the  only  attorney  to 
represent  the  interest  of  the  State. 

In  this  case  the  counsel  for  the  plaintiff  in  error  con- 
tended that  the  Republic  of  Texas  w^as  under  an  obligation 
amounting  to  a  contract,  to  make  grants  of  lands  to  claim- 
ants who  came  before  the  first  board  of  commissioners 
and  made  the  proof  prescribed  by  the  Act  of  the  Republic 
of  Texas  of  1837. 

2d.  That  the  grant  of  the  certificate  in  question  by  the 
first  board  —  a  tribunal  of  competent  authority,  was  in 
effect  a  judicial  decision  which  was  final,  and,  whether  fair, 
or  fraudulent,  the  validity  of  the  claim  could  never  be  suc- 
cessfully impeached,  nor  could  it  ever  be  inquired  into  ex- 
cept upon  appeal,  or  by  writ  of  error,  for  which  the  law  had 
made  no  provision. 

3d.   That  the  certificate  constituted  a  perfect  right  to  the 


376  BENCH  AND  BAR  OF  TEXAS. 

quantity  of  land  awarded,  and  all  legislation  of  the  Republic 
of  Texas  appointing  new  tribunals  to  examine  into  the 
genuineness  and  legality  of  such  claims,  or  to  limit  the  time 
within  which  the  holder  or  assio^nee  of  such  certificates  miaht 
demand  a  survey  and  patent,  was  void,  because  it  impaired 
the  obligations  of  a  contract,  and  that  the  eleventh  section 
of  the  Constitution  of  the  State  of  Texas  declaring  all  cer- 
tificates for  head-right  claims  issued  to  fictitious  persons,  or 
which  were  forged,  were  null  and  void  from  the  beginning, 
and  that  the  act  providing  that  the  District  Courts  should  be 
opened  till  the  1st  day  of  July,  1847,  for  the  establishment 
of  such  unrecommended  certificates,  was  also  null  and  void, 
as  it  impaired  the  obligation  of  contracts. 

The  points  made  by  Mr.  Harris,  the  counsel  for  the 
defendant  in  error,  were:  — 

1.  That  the  laws  of  Texas,  enacted  while  she  was  a 
Republic,  could  not  be  regarded  as  inhibited  by  that  pro- 
vision of  the  Constitution  of  the  United  States  which  says 
"  that  no  State  shall  pass  any  law  impairing  the»obligation  of 
contracts."  Nor  could  the  eleventh  article  of  the  Consti- 
tution of  the  State  be  so  regarded,  for  this  was  also  adopted 
during  the  existence  of  the  Hepublic,  and  it  formed  a  part 
of  the  treaty  between  the  two  governments  for  the  admission 
of  Texas  as  one  of  the  States  of  the  Union. 

It  may  be  said  that  this  article  was  offered  by  Texas  as 
an  indispensable  condition  of  the  contract  or  treat}''  for 
annexation,  and  was  accepted  by  Congress,  which  is  not 
prohibited  from  enacting  laws  or  making  treaties  impairing 
the  obligations  of  contracts. 

2.  That  there  was  no  obligation  on  the  part  of  the  Repub- 
lic to  issue  the  certificate  in  question;  that  the  granting  of 
the  certificates  was  based  upon  no  consideration,  which  is 
an  indispensable  requisite  of  every  legal  and  valid  contract ; 
and  that  the  laws  of  the  Republic,  and  the  eleventh  article  of 
the  Constitution  complained  of  were  remedial  laws,  which 
could  be  altered,  or  even  repealed,  by  the  power  that  made 
them  ;  and  that  the  plaintiff  in  error  had  certainly  no  cause 
of  complaint  against  the  eleventh  article  of  the  Constitution, 
since  that  revived  in  his  favor  a  remedy  which  he  had  lost 


JOHN    W.  HARRIS.  377 

by  limitation  in  iailing  to  institute  suit  before  the  1st  clay 
of  January,  1844,  and  since  he  had  also  lost  this  constitu- 
tional remedy  by  failing  and  refusing  to  accept  its  pro- 
visions. 

3.  That  the  Congress  of  the  Republic  had  full  power  to 
pass  laws  creating  new  boards  of  commissioners,  or  other 
tribunals  to  revise  the  acts  of  the  first  boards,  granting 
fraudulent  certificates,  and  to  reverse  their  decisions  ;  that 
had  these  certificates  been  fraudulently  granted  by  the 
highest  courts  of  the  Republic  the  legislative  power  could 
have  created  new  tribunals  to  revise  and  reverse  their  fraud- 
ulent judgments. 

4.  That  this  was  a  suit  against  the  State  without  its 
consent. 

5.  That  the  plaintiff,  by  his  own  laches,  had  lost  his  right 
to  sue  in  the  District  Court  for  the  establishment  of  his 
claims,  and  that  after  all  right  of  action  had  been  barred  he 
could  not  make  application  to  the  District  Court  lor  a  man- 
damus to  compel  the  surveyor  to  survey  the  land. 

6.  That  if  while  Texas  remained  an  independent  Republic 
her  Congress  had  passed  laws  annulling  all  these  certificates, 
such  would  have  been  the  effect  of  these  laws. 

It  will  be  seen  by  the  decision  in  League  v.  De  Young  et 
al.,  11  Howard,  200,  that  the  Supreme  Court  of  the 
United  States  sustained  these  several  positions  taken  by 
Mr.  Harris,  the  counsel  for  the  defendant  in  error. 

This  case  was  avowedly  taken  to  the  Supreme  Court  of 
the  United  States  as  a  test  case,  with  the  hope  of  obtainino- 
a  decision  to  the  effect  that  the  statutes  complained  of  and 
the  eleventh  article  of  the  Constitution  were  repugnant  to 
the  Constitution  of  the  United  States,  and  consequently  null 
and  void. 

Had  such  been  the  decision  it  is  easy  to  see  how  disastrous 
would  have  been  the  consequences.  The  court  in  its  opin- 
ion says:  "Immense  numbers  of  these  certificates  were 
soon  put  in  circulation,  either  forged  or  fraudulently  ob- 
tained, which,  if  confirmed  by  surveys  and  patents,  would 
soon  have  absorbed  all  the  vacant  land  of  the  Republic." 

Mr.  Harris  was  employed  in  1872  by  Gov.  Davis  to  assist 


378  BKNCH  AND  BAR  OF  TEXAS. 

Hon.  William  Alexander,  then  the  attorney-general  of  Texas, 
in  the  defense  of  a  suit  which  had  been  instituted  by  the 
International  Railroad  Company  v.  A.  Bledsoe,  controller 
of  Texas. 

The  object  of  the  suit  was  to  compel  the  controller  to 
countersign  and  register  claims  to  a  large  number  of  the 
bonds  of  the  State,  claimed  by  the  company  under  the  act 
of  the  Twelfth  Legislature,  passed  August  5,  1870. 

This  was  entitled  "An  act  to  incorporate  the  Interna- 
tional Eailroad  Company,  and  to  provide  for  the  aid  of  the 
State  in  constructing  the  same." 

The  aid  provided  was  the  donation  of  the  bonds  of  the 
State  to  the  company  of  ten  thousand  dollars  per  mile,  the 
road  to  be  constructed  from  the  northeast  to  the  southwest 
boundary  of  the  State,  a  distance  of  six  hundred  miles. 
These  bore  interest  at  the  rate  of  eight  per  cent,  payable 
semi-annually  in  the  city  of  New  York. 

The  bonds  had  been  signed  by  the  governor  and  treasurer, 
and  were  required  by  the  provisions  of  the  charter  to  be 
countersigned  and  registered  by  the  controller.  This  the 
controller  refused  to  do.  The  company  after  but  little  de- 
lay made  application  to  the  District  Court  of  Travis  County 
for  a  mandamus  to  compel  the  controller  to  countersign 
and  register  these  bonds. 

The  defendant  appeared  and  demurred,  generally  and 
specially,  to  the  petition,  and  among  other  special  causes 
assigned  the  following:  — 

1.  That  it  was,  in  effect,  a  suit  against  the  State. 

2.  That  the  controller  could  not  be  compelled  to  exer- 
cise his  official  discretion  in  any  particular  way. 

The  defendant  further  answered  that  the  passage  of  the 
act  of  incorporation  was  procured  by  means  of  fraud, 
bribery  and  corruption,  and  was  therefore  null  and  void. 

In  the  argument  before  the  Supreme  Court  the  points 
mainly  relied  upon  by  Hon.  George  Clark,  the  attorney- 
general,  and  Mr.  Harris,  the  counsel  for  Bledsoe, 
were:  — 

1.  That  the  duty  imposed  by  the  act  of  incorporation  re- 
quired on  the  part  of  the  controller  an  exercise  of  discretion 


JOHN    W.  HARRIS.  379 

or  judgment,  and  that  a  mandamus  would  not  lie  to  control 
his  discretion. 

2d.  That  under  the  Constitution,  the  court  had  no  power 
to  compel  an  officer  of  the  executive  department,  nor  any 
member  of  the  body  of  magistracy  of  said  department, 
whose  powers  are  defined  by  the  Constitution,  to  perform 
an  official  duty. 

The  duties  of  the  Governor,  of  the  Treasurer  and  of  the 
Controller  being  defined  by  the  Constitution,  it  was  con- 
tended in  argument  by  the  counsel  for  the  Controller,  that 
each  of  these  was  supreme  in  his  own  department. 

"If  this  position  be  regarded  as  untenable,"  say  the 
counsel,  "then,  let  us  suppose  that  a  peremptory  manda- 
mus had  been  awarded  against  the  Controller,  which  he 
refused  to  obey.  What  then  would  be  the  remedy  against 
him  to  enforce  the  judgment  of  the  court?  It  must  have 
been  to  attach  the  Controller  for  a  contempt  of  court,  and 
to  imprison  him  till  he  complied  with  its  order. 

"  Let  us  further  suppose  that  the  State  Treasurer  had  re- 
fused to  sign  the  bonds,  which  he  was  required  to  do  by  the 
charter  of  the  company,  and  had  also  refused  to  obey  a 
mandamus  of  the  court  to  compel  him  to  sign  them,  then, 
why  should  not  he,  like  the  Controller,  be  attached  and 
imprisoned  for  contempt  of  court? 

"  Let  us  further  suppose  that  the  Governor  of  the  State 
had  refused  to  sign  them,  and  had  also  refused  to  obey  a 
mandamus  requiring  him  to  subscribe  his  name  as  Governor 
to  these  bonds  —  would  he  not,  for  contempt  of  court, 
have  been  arrested  and  sent  to  jail  with  the  Treasurer  and 
Controller,  who  were  already  there? 

"  We  must  suppose,  that  if  such  were  the  law,  the  Gov- 
ernor, who  was  the  chief  executive  officer  of  the  State, 
whose  main  duty  it  was  to  see  that  the  laws  were  faithfully 
executed,  would,  as  a  good  law-abiding  citizen,  have  gone 
meekly  to  jail. 

"  Let  us  also  suppose  that  these  three  high  officials,  after 
trying  for  a  time  the  gloomy  walls  of  a  prison,  should  upon 
consultation  have  determined  that  it  was  better  to  execute 
the  bonds,  and  thus  preserve  at  least  their  own  freedom  — 


380  BENCH  AND  BAR  OF  TEXAS. 

and  they  had  executed  them  accordingly.  Would  this  have 
ended  the  trouble?  No  !  for  the  Leo;islature  might  still  re- 
fuse  to  make  an  appropriation  to  pay  the  bonds.  What 
then  must  be  done?  Would  the  judge  of  the  District 
Court  of  Travis  County  have  awarded  a  mandamus  to  the 
Legislature  to  compel  that  body  to  make  an  appropriation 
adequate  to  meet  the  semi-annual  interest  and  the  annual 
sinking  fund? 

"  In  case  of  refusal,  would  he  have  sent  the  members  of  the 
Senate,  and  those  of  the  House  of  Representatives,  con- 
stituting the  officers  of  the  legislative  department  of  the 
government,  to  the  Austin  jail,  to  which  he  had  recently 
consigned  the  Governor,  Treasurer  and  Controller  of  the 
Executive  Department? 

*'  Would  not  this  have  amounted  to  a  combination  of  the 
powers  of  the  legislative,  the  executive  and  the  judicial 
departments  in  one  man  —  the  judge  of  the  District  Court 
of  Travis  County?  And  this  Mr.  Madison,  the  great  ex- 
pounder of  constitutional  law,  said  was  the  very  definition 
of  tyranny. 

"  The  position  becomes  absurd,  when  it  is  borne  in  mind 
that  the  members  of  the  executive  department  and  those 
of  the  Legislature,  are  elected  by  the  people,  while  the 
judge  of  the  District  Court  of  Travis  County,  awarding  the 
mandamus,  obtained  his  office  by  the  appointment  of  E.  J. 
Davis,  at  that  time  the  Governor  of  Texas." 

In  this  connection  it  may  be  remarked  that  this  district 
judge  belonged  to  that  numerous  class  of  officers,  then  com- 
monly denominated  carpet  baggers.  How  humiliating  to 
the  Governor  I  How  galling  to  the  people  of  Texas  ! 
would  have  been  the  exercise  of  such  poivers,  hy  such  an 
officer!  ! 

The  o;reat  success  which  Mr.  Harris  has  attained  in  the 
practice  of  law  and  in  all  the  affairs  of  life  may  be  largely 
attributed  to  his  preparatory  course  and  early  training. 
He  made  success  the  goal  of  his  youthful  ambition,  and 
kept  that  one  object  constantly  in  view.  He  was  taught  at 
an  early  age  to  rely  upon  his  own  exertions,  and  he  recog- 
nized that  his  attendance  at  the  university   was   the    great 


JOHN   W.  HARRIS.  381 

opportunity  of  his  life.  His  limited  means  precluded  him 
from  those  indulgences  which  too  often  dissipate  the  efforts 
of  genius,  and  mar  both  the  advantages  and  prospects  of 
the  student.  His  observations  led  him  to  note  that  those 
students  who  enjoyed  the  prospect  of  large  inheritances, 
and  who  w^ere  prodigal  in  their  expenditures,  made  the 
slowest  progress  in  their  studies;  and  he  learned  to  appre- 
ciate the  advantages  of  the  retraints  which  poverty  places 
upon  the  diversions  of  pleasure.  He  thus  acquired  the 
habits  of  labor  and  self-denial  without  which  the  hio-hest 
ambition  and  the  brightest  genius  will  fail  to  reach  the 
goal  of  success,  especially  in  the  exacting  field  of  law. 

These  qualities,  thoroughly  wrought  into  his  character,  he 
brought  to  bear  upon  the  study  and  practice  of  his  profes- 
sion. His  first  step  is  to  thoroughly  learn  the  facts  of  his 
cases  and  then  to  study  the  applicable  law.  When  this  is 
done  and  he  is  satisfied  with  the  merits  of  his  side  of  the 
controversy,  he  enlists  every  energy  in  the  cause  and  iden- 
tifies himself  with  the  interests  of  his  clients. 

He  is  more  of  what  may  be  called  a  text  than  a  case  law- 
yer. He  relies  more  upon  the  principles  of  law  than  the 
power  of  precedent,  which  can  not  always  comprehend  the 
varied  colors  and  features  of  fact,  or  gather  them  within 
the  broad  folds  of  parity  or  analogy.  "While  he  is  care- 
ful and  painstaking  in  the  written  preparation  of  his  cases, 
he  is  remarkably  forcible  and  effective  in  oral  argument, 
both  before  the  court  and  the  jury,  and  it  has  been  the  con- 
stant practice  of  his  associates  to  concede  to  him  the  privi- 
lege of  making  the  closing  argument. 

His  social  characteristics  are  no  less  cultivated  than  his 
professional  attributes.  He  is  a  man  of  courteous  manners, 
refined  ethics,  and  engaging  address.  Kind-hearted,  gen- 
erous  and  keenly  sensitive  to  the  respect  due  to  others  and 
to  himself,  he  blends  the  cultured  uniformity  of  the  well- 
bred  Virginian  with  the  more  intensified  qualities  of  the 
true  Texan. 


382  BENCH  AND  BAR  OF  TEXAS. 


James  E.  Shepard. 


This  venerable  lawyer  and  excellent  gentleman  was  born 
in  Matthews  County,  Virginia,  on  the  24th  of  April,  1817. 
His  father  Seth  Shepard,  a  native  of  Connecticut,  was  of 
Scotch  descent,  and  was  an  eminent  physician.  His  early 
advantages  were  liberal,  and  he  was  educated  at  Miami 
University,  at  Oxford,  Ohio.  He  began  the  study  of  law 
in  1836  with  W.  R.  Beaty  at  Greenupsburg,  Kentucky, 
where  he  was  residing  with  an  uncle,  and  was  graduated 
from  the  law  department  of  the  Ohio  University  at  Cincin- 
nati. He  was  admitted  to  the  bar  at  Flemingsburg, 
Kentucky,  in  the  spring  of  1838  and  entered  at  once  upon 
an  encouraging  practice.  In  November,  1846,  he  re- 
moved to  Texas  and  located  at  Brenham,  in  Washington 
County,  where  he  has  since  chiefly  resided.  He  formed  a 
copartnership  at  Brenham  with  his  brother,  C.  B.  Shepard, 
which  continued  many  years,  and  until  the  latter  retired 
from  the  practice.  He  then  associated  with  him  several 
young  men,  some  of  whom  have  attained  distinction  at 
the  Texas  bar. 

He  was  a  member  of  the  Legislature  of  Texas  in  1850, 
and  served  a  subsequent  term  prior  to  the  war.  In  1861 
he  was  a  member  of  the  convention  which  severed  the  rela- 
tions of  Texas  with  the  Union,  and,  being  an  ardent 
Southerner  in  his  views  and  sentiments,  he  promptly  en- 
listed in  the  service  of  the  Confederacy,  and  was  made 
lieutenant- colonel  of  the  Sixteenth  Regiment  of  Texas 
infantry.  While  still  at  the  head  of  his  regiment  he  was 
elected  in  1864,  without  his  knowledge,  judge  of  the  Third 
Judicial  District,  and  accepted  that  position. 

He  was  a  member  of  the  reconstruction  convention  in 
1866,  and  was  during  that  year  re-elected,  without   opposi- 


JAMES    E.  SHEPARD.  383 

tion,  to  the  district  bench,  but  was  removed  in  1867  by  the 
military  power  as  an  impediment  to  reconstruction.  He 
was  then  appointed  dean  of  the  law  faculty  of  Bayler  Univer- 
sity and  held  that  position  for  several  years,  and  until  the 
suspension  of  the  law  department  of  that  institution,  which 
was  necessitated  by  the  scanty  attendance  occasioned  by 
the  strinofency  of  the  times  in  financial  matters. 

In  1873  he  removed  to  Austin  and  formed  a  copart- 
nership in  the  practice  of  law  with  J.  G.  Searcy,  which 
continued  about  five  years,  after  which  he  returned  to 
his  old  home  atBrenham,  where  he  is  still  residing  and  prac- 
ticing his  profession  with  a  vigor  and  activity  rarely  found 
in  one  of  his  years.  Judge  Shepard  is  a  man  of  great  integ- 
rity, firmness  and  independence  of  character,  and  as  a  judge 
was  able,  upright  and  pure,  readily  comprehensive  of  every 
point  upon  which  a  proposition  hinged,  liberal  in  his  in- 
tei*pretation  of  law  for  the  advancement  of  justice,  and 
watched  the  poise  and  inclinations  of  its  scales  with  a 
conscientious  eye. 

He  had  in  early  life  acquired  a  thorough  knowledge  of 
the  rudiments  and  fundamental  principles  of  law,  and  wove 
them  into  the  elements  of  his  own  judgment  and  percep- 
tion. As  a  hiwyer  he  is  full  worthy  of  the  distinction  he 
has  enjoyed  and  of  the  success  with  which  his  efforts  have 
been  crowned.  His  mind  is  active,  vigorous  and  steady  in 
its  grasp  of  the  substance  of  a  proposition,  and  he  never 
loses  sight  of  the  points  upon  which  the  merits  of  a  question 
hinge. 

Another  source  of  his  professional  strength  is  his  capacity 
for  captivating  the  minds  of  the  jury ;  his  methodical  ar- 
rangement of  facts,  his  forcible  illustrations,  earnestness  of 
manner,  boldness  of  assault,  and  complacent,  though 
scathing  rejoinder  and  repartee  gain  for  him  both  the 
attention  and  the  favor  of  the  jury.  He  knows  how  to 
avail  himself  of  ever}^  consideration  which  tends  to  awaken 
the  feelings  of  sympathy  ;  not,  however,  by  specious 
declamation  or  the  cunning  arts  of  suasion,  but  by  an 
appeal  to  the  nobler  passions  of  men,  their  sense  of  justice, 
their  sentiments  of  moral  rectitude,  and  to  the  just  and  full 


384  BENCH  AND  BAR  OF  TEXAS, 

comprehension  which  he  quickens  in  the  minds  of  his  hear- 
ers bj'  his  accurate  and  lucid  interpretation  and  sound 
judgment.  Ex-Governor  Roberts  lately  told  his  law  class 
in  the  University  of  Texas,  that  Judge  Shepard  was  one  of 
the  few  lawyers  in  the  State  whose  statement  of  a  case  was 
an  argument  in  itself,  nnd  it  may  be  said  of  him  that  he  is 
one  of  the  few  whose  overflowing  humor  and  overweening 
propensity  for  ludicrous  anecdote  and  badinage  never  im- 
pair the  most  implicit  faith  in  his  sincerity,  nor  weaken 
the  force  of  his  most  subtle  and  gravest  arguments.  It  was 
not  with  him  as  Dr.  Johnson  said  it  was  with  Shakespeare,  an 
irresistible  fondness  for  a  mere  quibble  which  allured  him 
from  the  dignity  and  profundity  of  his  disquisitions,  nor 
"  the  Cleopatra  for  which  he  lost  the  world  and  was  content 
to  lose  it;"  but  it  is  the  aroma  which  springs  from  the 
blossoms  of  his  genius  and  the  flowers  of  his  philanthropy  ; 
and  blending  the  force  of  his  wit  with  the  power  of  his 
wisdom  he  is  at  all  times  a  formidable  adversar3^  He  is 
also  one  of  the  few  lawyers  Avho  have  maintained  a  high 
position  at  the  bar  and  upon  the  bench  with  a  divided  alle- 
giance to  their  profession.  In  addition  to  his  successful 
practice  he  has  been  engaged  in  mill  enterprises  and  irri- 
gation schemes  —  rivals  which  the  Jealousy  of  law  would 
not  have  tolerated  in  an  ordinary  mind. 

Some  of  the  most  important  cases  argued  by  Judge  Shep- 
ard, and  which  are  illustrative  of  his  professional  qualities, 
are  Hall  v.  McCormick,  7  Texas,  269,  which  involved  the 
question  of  the  necessity  of  presenting  to  an  administrator 
the  claim  of  a  judgment  which  has  lost  its  lien;  and  Atkin- 
son V.  The  State,  20  Texas,  522,  in  which  he  discussed  the 
nature  and  application  of  the  ingredients  which  distinguish 
manslaughter  from  murder. 

In  private  and  social  life  Judge  Shepard  is  noted  for  his 
kindness  and  congeniality.  His  manners  are  courteous  and 
suave,  and  indicate  a  breast  full  of  the  noblest  impulses. 
He  was  married  in  1839  to  Miss  Martha  J.  Andrews,  of 
Flemingsburg,  Kentucky,  a  lady  in  Avhose  heart  every  noble 
sentiment  finds  a  reciprocity,  and  with  whom  he  has 
enjoj^ed  a  long  and  felicitous  union. 


VOLNEY   E.  HOWARD.  385 


VOLNEY    E.    HOWARD. 


The  subject  of  this  sketch  was  a  native  of  the  State  of 
Maine,  where  he  received  a  finished  education  and  was 
thoroughly  prepared  for  the  profession  of  law.  He  emi- 
grated to  Mississippi  about  the  year  1830,  and  located  at 
Jackson,  where  he  entered  upon  his  profession,  and  rose  so 
rapidly  in  the  confidence  and  esteem  of  the  bar  and  people 
that  in  1837  he  was  chosen  reporter  of  the  decisions  of  the 
High  Court  of  Errors  and  Appeals, 

His  reports  are  distinguished  for  lucid  and  systematic 
arrangement,  and  his  captions  and  syllabuses  are  compre- 
hensive, clear  and  exact.  He  also  took  a  prominent  part 
in  the  politics  of  the  day,  and  was  for  several  years  editor 
of  The  Mississippiaiii  a  newspaper  published  at  the  capital 
and  the  leading  Democratic  organ  of  the  State.  He  was  a 
vigorous  and  caustic  writer,  and  attacked  with  scathing  re- 
buke  and  sarcasm  every  measure  which  he  deemed  false  to 
the  interest  and  welfare  of  the  people,  while  he,  with  in- 
veterate alacrity  and  eloquence  advocated  the  true  princi- 
ples of  his  party.  His  paper  wielded  a  great  influence 
throughout  the  State,  and  the  force  and  ability  with  which 
he  inculcated  his  views  impressed  them  deeply  upon  both 
public  policy  and  private  enterprise. 

Mr.  Howard  is  a  man  of  extensive  culture  and  a  lawyer 
of  great  ability,  while  the  eminent  traits  which  adorn  his 
character  have  rendered  him  at  all  times  popular  with  the 
people  and  have  given  him  everywhere  a  high  profes- 
sional, political  and  social  standing.  Like  Mr.  Prentiss, 
he  came  to  Mississippi  without  means  and  without  friends, 
and  with  the  suspicion  and  prejudice  which  at  that  time  ex- 
isted in  the  minds  of  the  Southern  people  against  all  natives 
of  New  England  staring  him  in  the  face,  and  which  nothing 

25 


386  BENCH  AND  BAR  OF  TEXAS. 

but  the  most  amiable  character,  the  most  upright  conduct 
and  eminent  merit  could  have  so  soon  and  so  completely 
dispelled  as  to  admit  him  to  the  full  confidence  and  to  the 
warmest  support  and  patronage  of  the  people. 

In  the  year  1845,  while  in  the  meridian  of  his  profes- 
sional success  and  popularity  in  Mississippi,  Mr.  Howard 
was  allured  by  the  spacious  fields  of  the  young  republic  of 
the  West,  and  removed  to  San  Antonio,  Texas.  Here  his 
abilities  were  soon  called  into  the  public  service,  and  he 
was  chosen  a  member  of  the  annexation  convention,  and 
took  an  active  part  in  framing  the  Constitution  of  the 
State.  He  was  strenuously  opposed  to  the  introduction  of 
any  novel  and  experimental  features  in  the  organic  law,  or 
any  which  savored  of  class  legislation.  He  opposed  the 
clause  excluding  ministers  of  the  gospel  from  political 
office,  and  likewise  any  extension  of  the  liberty  or  license 
of  the  press.  In  his  opposition  to  the  latter  measure  he 
said:  — 

"It  is  easy  to  indulge  in  declamation  upon  liberty,  but 
to  understand  the  principles  of  liberty,  and  to  know  the 
measures  necessary  to  its  security,  is  a  somewhat  different 
matter.  Sir,  what  is  the  liberty  of  the  press?  We  have 
heard  a  great  deal  said  about  it  here,  but  no  one  has  at- 
tempted to  define  it.  I  will  not  give  you  my  own  crude 
definition,  or  the  speculation  of  my  own  views,  but  those 
of  the  wisest  sages,  of  the  most  enlightened  jurists  and 
statesmen.  The  liberty  of  the  press,  then,  is  defined  to  be 
the  right  to  publish  our  sentiments  and  opinions,  unre- 
strictedly, being  afterwards  responsible  for  the  abuse  of 
that  right.  That  is  the  liberty  of  the  press,  and  there  is 
not  one  jurist  or  statesman  who  has  defined  the  liberty  of 
the  press  as  the  right  to  publish  without  responsibility.  It 
would  be  extraordinary.  One  of  the  principal  objects  of 
government  is  to  protect  the  liberty  of  the  person,  and 
property.  But  would  the  government  be  perfect,  would  it 
answer  the  ends  for  which  it  is  created,  if  it  did  not  protect 
reputation  and  character  also?  Are  we  to  say  that  repu- 
tation is  less  dear  than  property?  To  a  high-toned  man  it 
is  dearer  than  life  itself. 


VOLNEY    E.  HOWARD.  387 

*'  We  have  heard  a  good  deal  of  declamation  about 
the  antiquated  doctrines  of  the  common  law,  and  the 
tyranny  of  English  decisions  in  relation  to  the  press.  It 
comes  with  a  very  poor  grace  from  Americans.  The  liberty 
of  the  press,  like  almost  all  the  principles  of  liberty,  is  the 
growth  of  English  culture.  It  first  took  root  in  English 
soil.  When  printing  was  first  discovered,  it  was  considered 
entirely  an  affair  of  state,  and  its  regulation  was  confined 
to  the  crown.  This  jurisdiction  in  England  was  in  process 
of  time  placed  in  the  Star  Chamber.  There  it  remained 
until  the  Revolution  and  the  Long  Parliament  of  1(541,  in 
the  time  of  Charles  the  First,  where  it  was  assumed  by 
Parliament  itself,  which  exercised  it  until  the  restoration  of 
Charles  the  Second,  soon  after  which  the  censorship  was 
revived  by  an  act  of  Parliament,  which  continued  in  force 
until  the  year  1694.  But  in  the  meantime  the  English 
mind  became  aroused  upon  the  subject,  and  the  act  was 
allowed  to  expire  by  its  own  limitation.  Upon  that  nega- 
tive basis  the  freedom  of  the  press  rested,  and  thus  it 
remained,  until  the  passage  of  the  act  which  gave  juries 
the  right  to  determine  the  fact  and  the  law  as  in  other  cases. 
The  rights  of  the  press  were  freely  discussed  and  defined 
upon  the  trial  of  the  publisher  of  Junius,  and  more  recently 
in  the  speeches  of  Erskine,  some  of  which,  for  variety  and 
purity  of  principles,  for  profound  thinking  and  masterly 
eloquence,  are  unsurpassed  by  anything  of  the  kind  since 
the  days  of  Cicero.  And  what  were  the  principles  estab- 
lished by  him?  For  what  principles  did  Junius  contend? 
That  ever}'^  man  in  the  discussion  of  public  affairs  had  the 
right  to  publish  what  he  should  think  proper,  being  after- 
wards responsible  for  the  abuse  of  the  privilege.  Thus 
stood  the  right  prior  to  the  American  revolution.  Now, 
what  is  our  own  history  upon  the  subject?  When  the 
American  Union  was  framed,  the  English  principles  upon 
the  subject  of  libel  were  the  principles  of  this  country.  In 
1798  that  measure  occurred  which  cut  so  large  a  figure 
under  the  administration  of  John  Adams,  of  punishing 
editors  for  their  comments  upon  the  conduct  of  the  Presi- 
dent, members  of  Congress,  and  officers  of  the  government. 


388  BENCH  AND  BAR  OF  TEXAS. 

And  here  let  me  remark  that  it  was  not  so  much  the  exer- 
cise of  the  power,  as  the  odious  manner  of  its  exercise, 
which  produced  excitement.  Jefferson  opposed  it,  and 
rallied  around  him  what  was  then  called  the  Democratic 
party.  Now,  for  what  principle  did  Jefferson  contend? 
For  the  right  to  publish  whatever  a  man  pleases,  without 
any  check?  Did  he  say  that  the  liberty  of  the  press  ex- 
cluded the  idea  of  responsibility?  I  have  never  seen  from 
the  pen  of  Jefferson  the  expression  of  any  such  senti- 
ment. There  has  never  been  an  intimation  in  the  whole 
course  of  the  history  of  the  subject  that  a  man  should 
have  the  right  to  publish  what  he  pleases  without  being 
afterwards  responsible.  It  has  indeed  been  constantly 
contended  that  no  censorship  should  be  exercised  over 
a  man  as  to  what  he  should  publish ;  but  if  he  should 
publish  what  is  improper  or  injurious,  it  has  been  unani- 
mously admitted  that  he  should  be  held  responsible.  Thus 
for  the  principles  of  the  English  law.  American  principles 
go  a  step  further,  and  Mi*.  Jefferson,  when  he  went  into  power, 
contended  that  '  in  all  prosecutions  for  the  publication  of 
papers  investigating  the  official  conduct  of  officers,  or  men 
in  a  public  capacity,  the  truth  thereof  may  be  given  in 
evidence.' 

."  But  with  regard  to  private  life  a  different  principle  has 
been  maintained  by  every  American  statesman  of  any  in- 
fluence. To  that  extent  I  will  go.  I  would  propose  to 
amend  by  adding,  after  the  word  '  evidence,'  the  folio w- 
ino- :  '  But  in  other  cases  the  truth  shall  not  avail  as  a 
defense,  unless  published  from  correct  motives  and  for  pur- 
poses of  public  good.'  What  is  the  only  difference  here? 
One  party  contends  that  in  private  affairs  the  truth  should 
be  published  at  all  times,  without  regard  to  public  good  or 
inconvenience,  and  that  if  the  truth  is  made  out,  it  should 
be  ample  protection.  Now  I  deny  that  there  is  any  such 
principle  known  to  the  law.  I  maintain  that  it  would  be 
destructive  of  the  liberty  of  the  press  itself;  for  liberty 
means  restraint  —  the  protection  of  the  right  and  the  re- 
straint of  the  wrong.  Now,  is  it  right,  under  all  circum- 
stances, that  the  affairs  of  private  life  should  be  published 


VOLNEY    E.  HOWARD.  3^9 

to  the  world?  *  *  *  Is  it  right  that  innocence  and 
misfortune  should  be  needlessly  held  up  to  public  scorn 
and  ridicule,  and  their  fortunes  in  life  perhaps  forever 
blasted  by  an  impudent  caterer  for  the  love  of  slander  in- 
herent in  the  human  breast?  I  look  upon  such  a  person  as 
an  assassin  in  the  dark,  too  vile  to  move  in  the  face  of  day. 
Discuss  public  affairs  as  fully  as  you  will;  handle  public 
men  with  what  severity  you  choose  ;  subject  them  to  the 
keenest  scrutiny;  but  let  the  liberty  stop  there.  If  an  in- 
dividual is  guilty  of  a  great  outrage,  it  may  be  necessary 
and  beneficial  to  the  public  to  publish  the  facts  ;  but  in  such 
cases  ample  protection  is  afibrded.  It  is  an  old  adage,  and 
a  true  one,  that  '  the  truth  may  not  be  spoken  at  all  times  ; ' 
there  are  many  things  that  need  not  be  told.  I  say,  then, 
that  the  government  which  fails  to  protect  character  from 
unjust  and  unprovoked  aspersion  is  as  imperfect  as  one 
that  fails  to  protect  life.  The  one  is  as  dear  as  the  other, 
and  ought  as  much  to  be  placed  under  the  protecting  shadow 
of  the  law.  By  nothing  we  can  do  here,  could  we  hope  to 
prevent  the  licentiousness  of  the  press  to  any  great  extent. 
But  I  am  not  willing,  in  the  fundamental  law  of  the  land, 
to  offer  a  reward  for  licentiousness.  I  would  at  least  incul- 
cate a  moral ;  whether  it  can  be  practically  enforced  or  not, 
is  no  business  of  ours.  The  danger  to  the  people,  and  to 
the  press  itself,  is  from  its  license.  There  is  no  adequate 
remedy,  but  this  is  the  only  one  in  our  power.  It  is  not 
my  purpose  to  declaim  here  about  the  glorious  privileges  of 
the  press;  God  knows  it  has  privileges  enough.  And  many 
a  man,  while  declaiming  in  the  name  of  Democracy,  has 
stabbed  liberty  to  the  heart.  Who  were  louder  in  eulogiz- 
ing liberty  than  Robespierre  and  Marat  ?  yet  who  did  more 
to  sap  its  very  foundation  in  Europe? 

"  Let  us  understand  the  import  of  the  principles  which 
we  are  adopting.  The  article,  as  it  stands  in  the  report, 
leaves  it  to  the  Legislature  to  say  whether  or  not  it  shall  be 
competent  to  permit  the  truth  to  be  given  in  evidence,  in 
case  of  publications  relating  to  private  affairs.  I  propose 
to  control  the  Legislature  in  that  respect.  I  think  some  re- 
straint would  be  salutary." 


390  BENCH  AND  BAR  OF  TEXAS. 

Soon  after  the  adjournment  of  the  convention  Mr. 
Howard  was  elected  to  the  Senate  of  the  State,  and  in  1849 
was  chosen  to  represent  the  Western  District  of  Texas  in 
the  United  States  Congress,  in  which  he  took  an  active  part 
in  the  interest  of  the  Missouri  Compromise  and  other  im- 
portant measures  which  were  at  that  time  agitating  the 
waters  of  national  politics.  At  the  expiration  of  his  Con- 
gressional term,  in  1852,  he  was  sent  by  the  President  of 
the  United  States  to  California  as  an  agent  to  settle  land 
claims  and  other  matters,  and  has  never  returned  to  Texas ; 
but,  having  settled  there,  has  acquired  much  additional  re- 
putation in  his  profession. 


r.  B.  SEXTON.  391 


F.    B.    SEXTON. 


Franklin  Barlow  Sexton  was  born  in  New  Harmony, 
Posey  County,  Indiana,  on  the  29th  of  April,  1828,  His 
father  was  a  native  of  Connecticut  and  was  a  descendant  of 
one  of  the  old  families  of  that  State.  While  in  the  tenth 
year  of  his  age  he  removed  with  his  father's  family  to  San 
Augustine,  Texas,  where  his  father  died  in  1841  and  left 
him  in  the  sole  care  of  his  mother.  She  was  a  lady  of  deep 
and  devoted  piety  and  reared  him  in  the  strictest  and  most 
careful  manner,  and  to  her  he  owes  all  the  inspirations  of 
his  youth  and  pei'haps  the  achievements  of  his  after  years. 
His  educational  advantages  were  good,  and  he  g^uaduated  at 
the  Wesleyan  College,  San  Augustine,  Texas,  in  1846. 
He  afterwards  served  a  short  apprenticeship  in  a  printing 
office,  and  then  studied  law  in  the  office  of  J.  Pinckney 
Henderson  and  O.  M.  Roberts.  Havino-  received  a  thorough 
legal  training  under  the  supervision  of  these  distinguished 
gentlemen,  who  were  at  that  time  partners,  he  was  admitted 
to  the  bar  in  1848,  and  immediately  began  the  practice  of 
law  at  San  Augustine,  and  soon  acquired  a  professional 
reputation  which  grew  to  a  high  standard  of  eminence. 

The  teachings  of  his  mother,  who  was  a  Georgian,  his 
education  and  associations,  early  imbued  his  mind  with  the 
warmest  Southern  sentiments  and  staunch  Democratic 
principles,  and  he  accepted  the  alternative  of  secession  pre- 
sented by  the  "  irrepressible  conflict  "  with  all  the  enthus- 
iasm of  his  nature.  In  1861  he  entered  the  Confederate 
service,  and  during  the  same  year  was  elected  to  fill  a 
vacancy  in  the  Texas  Senate,  but  did  not  return  in  time  to 
take  his  seat.  In  1862  he  was  elected  to  the  Congress  of 
the  Confederate  States,  and  was  zealous  in  his  support  of 
all    measures   which   promised    to   promote    the    Southern 


392  BENCH  AND  BAR  OF  TEXAS. 

cause  and  bring  triumph  to  the  Southern  arms.  He  was 
ardent  and  unswerving  in  his  devotion  throughout  the  war 
to  the  principles  which  he  cherished,  and  at  its  close,  hold- 
ing fast  to  his  honor  and  dignity,  he  promptly  accepted  the 
inevitable  consequences  of  its  result,  and  returned  to  the 
practice  of  the  law  at  San  Augustine  where  he  again  engaged 
in  a  large  practice.  In  1872  he  removed  his  office  to  Mar- 
shall, where  he  has  since  continued  to  reside  in  the  enjoy- 
ment of  one  of  the  first  legal  reputations  in  Eastern  Texas. 

In  1876  he  was  chosen  a  delegate  to  the  National  Demo- 
cratic Convention  which  assembled  at  St.  Louis  and  nomi- 
nated Mr.  Tilden  for  the  presidency.  Since  that  time  he 
has  devoted  himself  exclusively  to  the  practice  of  his  pro- 
fession; yet,  has  cherished  a  lively  interest  in  political 
events,  and  especially  in  those  affecting  the  welfare  of  the 
South  and  of  his  State. 

Mr.  Sexton  is  a  man  of  gj-eat  moral  and  personal  integ- 
rity, and  pursues  the  even  tenor  of  a  career  adorned  with 
ability  and  genius  and  arched  over  with  the  purest  Christian 
virtues.  He  is  a  devout  communicant  of  the  Episcopal 
Church,  and  has  been  an  active  member  of  the  Masonic 
fraternity  since  he  was  twenty-one  years  Of  age,  which  has 
honored  him  with  the  highest  official  positions  of  the  order. 
H^  has  been  grand  master,  grand  high  priest  and  grand 
commander  of  the  Knights  Templar. 

A  biographer  often  finds  the  currents  of  character  flow- 
ing from  the  inspiring  fountains  of  a  mother's  affection,  and 
their  course  and  vigor  shaped  by  the  encouragement  of  a 
noble  wife.  The  virtues  of  these  have  formed  the  noblest 
themes  of  both  romance  and  reality. 

Xenophou,  in  his  elegant  memorabilia  of  Socrates,  relates 
a  beautiful  allegory  describing  the  choice  of  Hercules  be- 
tween the  superficial  allurements  of  sensuality  and  the  real 
charms  of  virtue.  The  youthful  hero,  having  arrived  at  the 
age  of  discretion,  sought  the  stillness  of  solitude  for  the 
purpose  of  refl.ecting  and  deciding  upon  his  course  of  life, 
and  while  in  a  state  of  perplexity  as  to  whether  he  should 
enter  upon  life  by  the  way  of  virtue  or  the  path  of  vice, 
he  was  approached  and  accosted  by  two  women  of  remark- 


F.   B.   SEXTON.  393 

able  stature  and  appearance.  The  countenance  of  one  of 
these  ladies  glowed  with  benevolence  and  the  modest  smile 
of  amiability.  Her  manners  were  dignified  and  gentle : 
every  feature  betokened  the  highest  culture  of  decency  and 
gentility.  She  wore  no  ornaments.  Her  native  charms 
needed  no  artificiality  to  add  to  their  serene  splendor.  She 
was  adorned  with  neatness  and  elegance,  and  all  her  gar- 
ments were  of  the  purest  white. 

The  other  was  not  without  beauty ;  but,  notwithstanding 
her  rouged  cheeks  and  carmined  lips,  her  countenance  had 
the  appearance  of  being  sallowed  and  bloated  from  luxurious 
excesses  ;  and  while  she  affected  the  most  eng-agiiis  man- 
ners  her  demeanor  was  evidently  studied  and  constrained, 
and  every  artifice  was  invoked  to  remedy  her  natural 
defects.  Her  fingers  and  ears  and  breast  glittered  with 
sparkling  ornaments.  She  was  exceedingly  bold,  and  the 
blush  of  modesty  was  altogether  a  stranger  to  her  cheeks. 
Her  dress  was  of  the  most  gorgeous  colors,  and  she  was 
ever  on  the  alert  to  detect  the  least  glance  of  admiration; 
indeed,  she  would  often  stop  to  admire  her  own  shadow. 

With  characteristic  pertness  she  hastened  in  advance  of 
the  quiet,  majestic  step  of  her  companion,  and  addressing 
Hercules  with  a  bland  but  aff*ected  smile,  announced  to  him 
that  she  was  aware  of  the  character  of  his  meditations,  and 
if  he  would  accept  the  offerings  of  her  friendship  she  would 
conduct  him  along  the  most  flowery  paths  of  happiness  and 
ease,  where  every  delight  should  court  his  enjoyment,  and 
not  a  thorn  of  pain  or  thistle  of  sorrow  should  ever  pierce 
his  feet.  Free  from  the  harsh  and  annoying  concerns  of 
life  the  pleasures  of  luxury  should  be  his  only  employment. 
Upon  this  flattering  and  seductive  announcement,  Hercules 
demanded  her  name.  "My  friends,"  said  she,  "  call  me 
Happiness  ;  but  my  enemies  brand  me  with  the  nick-name. 
Sensuality." 

By  this  time  the  other  lady  had  arrived,  and,  accosting 
Hercules,  said  that  she,  too,  had  come  to  offer  the  consola- 
tion of  her  friendship  in  the  matter  about  which  he  seemed 
to  be  disturbed  ;  that  she  was  not  a  stranger  to  his  eminent 
parentage,  and  had  remarked  the  goodness  and  amiability 


394  BENCH  AND  BAR  OF  TEXAS. 

of  his  disposition  from  his  early  childhood,  and  in  view  of 
which  she  entertained  the  most  lively  hopes  that  if  he  would 
follow  her  lead  he  would  achieve  glory  for  himself  and  be 
an  honor  to  his  chaperon  ;  but  that  she  did  not  intend  to 
allure  him  by  specious  promises  of  pleasure,  but  would 
represent  things  as  they  existed  in  reality,  and  disclose  to 
him  the  will  of  heaven  concerning  them.  "  Know  then, 
young  man,"  said  she,  "that  the  allwise  rulers  of  the  uni- 
verse have  decreed  that  nothing  great,  nothing  excellent  can 
be  achieved  without  care  and  labor:  that  no  good,  no  hap- 
piness, can  be  attained  on  any  other  terms.  If,  therefore, 
you  would  obtain  the  favor  of  the  gods,  adore  them.  It' 
you  desire  the  love  ot  your  friends,  be  worthy  of  it.  If 
you  wish  to  be  honored  by  your  fellow-citizens,  serve  them. 
If  you  wish  to  enjoy  the  fruits  of  the  earth,  cultivate  it. 
Thus  alone,  O  Hercules,  mayest  those  attain  that  felicity 
with  which  I  am  empowered  to  reward  those  who  yield  to 
my  direction,  and  who  not  only  enjoy  the  richest  blessings 
of  earth,  but  when  the  fatal  hour  arrives,  my  votaries  sink 
not  like  others  into  inglorious  oblivion,  but  live  forever  in 
the  favor  of  the  gods  and  the  grateful  remembrance  of 
mankind." 

The  lady  in  white  beautifully  represents  the  spirit  of 
maternal  influence  —  the  virtuous  inspirations  of  a  noble 
mother  or  devoted  wife,  and  as  the  life  of  Hercules  evinced 
the  wisdom  of  a  choice  which  enabled  him,  under  the 
sternest  decrees  of  fate,  to  glorify  the  teachings  of  virtue, 
so  the  life  of  Judge  Sexton  verifies  the  power  of  those  hal- 
lowed admonitions  which  he  received  from  his  pious  and 
devoted  mother. 

One  of  the  most  important  cases  argued  by  Judge  Sexton 
in  the  Supreme  Court  is  that  of  Snider  v.  The  International 
and  Great  Northern  Eailroad  Company.  The  question  in 
this  case  arose  upon  the  interpretation  of  the  act  of  the  29th 
of  November,  1871,  declaring  that  the  withdrawal  of  a  cer- 
tificate and  field  notes  from  the  land  office  by  the  owner  or 
his  authority,  "  will  render  the  location  and  survey  null  and 
void."     In  arguing  the  meaning  of  the  statute,  he  said  :  — 

"  Those  words  speak  for  themselves.     True  it  is  that  the 


F.   B.   SEXTON.  395 

language  of  the  article  is  '  the  withdrawal  of  such  certifi- 
cate,'  and  the  words  '  by  the  owner  or  his  authority  '  are 
not  there.  But  what  is  the  ordinary  meaning  of  the  word 
'withdrawal?'  'To  take  back,'  'to  recall.'  (Web- 
ster's Dictionary.)  Who  can  take  back  or  recall,  except 
the  one  who  originally  deposited  the  thing  to  be  taken  back 
or  recalled?  The  Legislature  must  be  understood  to  have 
used  words  in  their  usual  and  ordinary  signification.  If 
some  man,  having  no  right  to,  or  claim  on  a  piece  of  prop- 
erty in  the  land  office,  or  elsewhere,  takes  it  out  of  the  place 
where  it  has  been  deposited,  that  is  not  a  withdrawal.  It 
may  be  a  theft ;  it  may  be  a  trespass  ;  it  certainly  is  not  a 
withdrawal.  And,  for  the  quite  conclusive  reason  that  hav- 
ing never  put  it  there,  he  could  not  withdraw  it.  The  owner 
of  the  certificate  could  control  it.  Having  placed  it  there, 
in  the  first  instance,  he  could  let  it  remain,  or  he  could  re- 
call it,  or  withdraw  it  and  then,  he  became  subject  to  the 
consequences  of  his  own  act.  Article  7097  of  Paschal's 
Digest  provides,  that  where  the  field  notes  of  surveys  made 
by  virtue  of  certificates  referred  to  in  the  preceding  section 
(Art.  7096)  'have  been  returned  to  the  general  land 
office,  and  the  certificate  by  virtue  of  which  the  survey  was 
made  is  not  on  file  in  the  general  land  office,  nor  has  been 
withdrawn  for  location  of  unlocated  balance  as  is  provided  in 
the  first  section  of  this  act,  such  certificate  shall  be  returned 
to  and  filed  in  the  general  land  office,'  etc.  Appellant's 
whole  case  consists  in  a  literal  construction  of  the  words 
'  and  the  certificate  by  virtue  of  which  the  survey  was  made 
is  not  on  file  in  the  general  land  office.'  And,  in  order 
to  give  those  words  the  effect  contended  for  by  appellant, 
all  the  balance  of  the  act  must  be  entirely  stricken  out,  and 
they  must  be  made  eifectual,  if  they  can  be,  by  their  own 
inherent  force  and  energy.  I  do  not  think  this  court  will 
undertake  such  an  enterprise.  What  those  words  mean  is 
rendered  apparent  by  what  immediately  follows  them,  viz.  : 
'  nor  has  been  withdrawn  for  location,'  etc.  The  balance 
of  the  sentence  and  of  the  article  (7097),  in  which  these 
words  occur,  shows  clearly  that  the  legislative  mind  was  still 
contemplating  an    act  by  the  owner  of  the  certificate  (/.e. 


396  BENCH  AND  BAR  OF  TEXAS. 

a  recalling  by  one  who  had  placed  the  certificate  in  the  land 
office  and  had  the  right  and  power  to  recall,  or  withdraw 
it),  and  was,  for  satisfactory  reasons  of  public  policy,  pro- 
viding certain  legal  consequences  to  that  act.  The  use  of 
the  word  '  return '  in  the  same  connection  strengthens  the 
view  I  am  endeavoring  to  present.  It  is  possible  that  a 
party  who  had  illegally  and  improperly  taken  a  piece  of 
property  from  the  owner  thereof,  or  from  the  place  where 
it  was  by  law  deposited,  might  return  it.  But  such  conduct 
is  not  usual  and  we  can  not  suppose  the  Legislature  was 
providing  for  such  an  unusual  and  improbable  contingency. 
The  Legislature  was  evidently  contemplating  a  '  return ' 
by  the  party  who  had  withdrawn  the  certificate  and  it  was 
for  him  and  his  conduct  that  it  was  then  providing.  Article 
7098  uses  the  word  '  withdrawn '  and  '  withdrawal '  alto- 
gether when  referring  to  field  notes  and  surveys, 

"  Not  only  is  the  meaning  of  the  Legislature  clear,  as  I 
think,  by  the  words  it  has  used,  but  if  resort  is  had  to  con- 
struction it  seems  impossible  to  make  the  act,  under  con- 
sideration, mean  what  is  contended  for  by  appellant.  And 
this,  for  the  reason  that  the  construction  placed  upon  the 
act  of  29th  of  November,  1871,  by  appellant  renders  it 
absurd  and  unjust.  Is  it  reasonable  or  just  that  one  man 
should  suffer  for  the  act  of  another  which  he  did  not  know 
of  and  could  not  prevent?  And  is  not  that  the  direct  and 
necessary  result  of  the  construction  of  the  act  in  question 
which  is  insisted  upon  by  appellant  to  be  correct?  It 
seems  so  to  me.  Appellant  says  the  McNutt  certificate 
and  field  notes  were  '  out  of  file  '  — '  not  on  file  '  —  and 
therefore  '  the  location  and  survey  thereunder  were  for- 
feited, and  I  (appellant)  have  located  the  land.'  We  ask 
who  took  them  out?  We  did  not.  Appellant  replies, 
'  I  do  not  know  or  care  who  took  them  out ;  they  are 
out,  and  I  have  taken  your  land.'  Is  this  reason?  Is 
this  justice?  Is  it  what  the  law  means?  Did  the  Legis- 
lature intend  to  produce  a  result  which  so  shocks  the  moral 
sense  and  common  intelligence  of  mankind? 

"  Elementary  authors,  among  the  different  rules  for  the 
construction  of  statutes,  say  that  it  is   proper  to  consider 


F.  B.  SEXTON.  397 

♦  the  old  law,  the  mischief  and  the  remedy.'  Let  us  briefly 
apply  these  tests  to  the  statute  under  discussion.  It  was  a 
fact  so  notorious  as  to  have  become  a  matter  of  public 
legislative  history,  and  therefore  I  am  justified  in  referring 
to  it,  if,  indeed,  this  court  will  not  take  judicial  notice  of 
it,  that  the  owner  of  a  certificate  would  locate  it  in  one 
place,  have  a  survey  made  under  it,  and  return  the  field 
notes  to  the  general  land  oflSce,  then  withdraw  it  (or,  as 
was  sometimes  said,  float  it)  and  locate  it  in  another 
place,  have  another  survey  made  and  again  return  the 
field  notes,  and  so  on,  until,  in  some  instances,  three  or 
four  or  perhaps  more  different  surveys  or  tracts  of  land 
were  held  by  the  same  certificate.  The  party  making 
these  different  locations  and  surveys  would  hold  them  until 
an  opportunity  was  afforded  him  to  sell  upon  speculation 
to  some  one  who  had  a  certificate,  when  he  would  again 
float  his  and  make  another  location,  his  original  location 
and  survey  meanwhile  remaining  in  the  land  oflSce,  and 
when  he  had  speculated  as  much  as  he  desired,  or  was  pru- 
dent, he  would  return  his  certificate  and  obtain  a  patent  on 
his  original  field  notes.  Or  perhaps  the  process  would  be 
reversed,  and  the  party  floating  his  certificate  from  place 
to  place  would  procure  certificates  by  purchase  or  other 
means  not  necessary  to  be  specified,  and  apply  them  to  the 
choice  locations  he  had  secured  by  floating  his  original  cer- 
ticate.  There  was  a  well  known  phrase,  borrowed  from 
the  nomenclature  of  stock  raisers,  often  used  in  conversa- 
tion to  describe  the  proceeding  to  which  I  have  just  re- 
ferred, but  judicial  propriety  forbids  that  I  should  use  it 
here,  though  it  is  very  expressive.  I  doubt  not  your 
Honors  have  heard  it  and  readily  understand  my  allusion. 
This  was  doubtless  the  mischief  which  the  Legislature  was 
tryiug  to  prevent,  and  which  the  old  law  was  not  suffi- 
ciently specific  to  prevent.  The  remedy  clearly  was,  to 
provide  that  the  owners  of  certificates  who  had  withdrawn 
them  from  the  general  land  office  for  the  purpose  of 
speculating  improperly  upon  the  public  domain,  or  upon 
the  ignorance  or  necessities  of  others,  should  return  them 
and  procure  patents  upon  their  original  locations.     Is  not 


398  BENCH  AND  BAR  OF  TEXAS. 

the  conclusion  irresistible  that  this  is  just  what  the  Legis- 
lature was  considering  and  what  it  intended  to  do,  and  did? 
The  case  of  a  certificate  and  field  notes  already  in  the 
general  land  office  and  never  withdrawn  by  the  owner, 
but  simply  on  deposit  and  awaiting  patent,  was  not  thought 
of,  much  less  in  any  way  provided  for  or  effected  by  the 
Legislature  which  passed  the  act  of  29th  of  November, 
1871. 

"  If  it  be  said  that  the  object  of  the  Legislature  was  more 
or  different  than  I  have  stated,  in  this,  that  it  was  to 
ascertain  the  quantity  of  unappropriated  public  domain, 
and  to  induce  diligence  upon  the  part  of  the  owners  of  cer- 
tificates, still,  I  answer,  the  idea  is  clear  and  conspicuous 
that  the  act  from  the  beginning  to  end  contemplated  and 
was  framed  with  reference  to  withdrawal  by  the  owner.  It 
nowhere  appears  that  it  was  intended  by  the  Legislature  to 
punish  the  owner  of  a  certificate  and  survey  for  an  act  done 
by  another.  It  has  no  word  of  reference  to  the  man  who 
has  complied  with  the  law  ;  to  the  man  whose  location  and 
survey  had  been  made,  whose  field  notes  and  certificate  had 
been  returned  and  vvere  on  file  in  the  land  office.  To  him 
it  said,  by  saying  nothing,  that  you  have  done  your  duty  — 
you  have  only  to  get  your  patent.  But  to  the  man  who  had 
'withdrawn'  his  certificate  or  field  notes,  it  said,  you 
must  return  it,  or  you  will  be  held  to  have  abandoned  your 
location,  and  we  will  let  another  take  it. 

"  Says  Professor  Lieber,  an  author  whose  recent  work  on 
Political  and  Legal  Hermeneutics  can  not  fail  to  commend 
itself  to  those  of  the  legal  profession  who  read  it,  '  there 
can  be  no  sound  interpretation  without  good  faith  and  com- 
mon sense.'  (p.  109.)  Again  on  the  same  page  he  says, 
'  that  which  is  probable,  fair  and  customary,  is  preferable 
to  the  improbable,  unfair  and  unusual.'  In  reference  to 
construction,  says  the  same  author  (p.  136),  *  no  text  im- 
posing obligations  is  understood  to  demand  impossible 
things.'  (Would  it  not  be  impossible  for  the  owner  of  a 
certificate  to  return  it  to  the  land  office  when  he  had  not 
withdrawn  it  therefrom,  did  not  know  of  its  absence  and 
did  not  know  where  it  was?)     Again,  on  same  page,  '  the 


F.  B.  SEXTON.  399 

effects  *  which  would  result  from  one  or  the  other  con- 
struction may  guide  us  in  deciding  which  construction  we 
ought  to  adopt.'  In  the  preceding  brief  your  Honors 
will  find  several  references  to  this  author  and  to  Dwarris  on 
Statutes,  all  of  which  are  earnestly  commended  to  the  con- 
sideration of  the  court.  The  interpretation  and  construc- 
tion of  this  statute  of  29th  of  November,  1871,  is  an 
important  feature  in  this  case,  and  this  is  my  apology  for 
occupying  so  much  time  with  it. 

"  I  submit,  further,  that  the  construction  of  this  statute, 
contended  for  by  appellant,  would  deprive  the  defendants 
of  their  property,  the  land  appropriated  by  the  McNutt 
certificate,  .survey  and  field  notes,  without  due  course  of 
law.  The  owners  of  the  McNutt  certificate  have  complied 
with  the  law.  Neither  McNutt,  or  those  holding  under 
him,  have  done  anything  to  forfeit  his  or  their  rights.  Is 
a  forfeiture  of  their  estate  to  be  declared  by  legislative 
enactment  on  account  of  the  tort  or  malfeasance  of  another, 
or  on  account  of  the  negligence  or  carelessness  of  a  public 
officer  (the  commissioner  of  the  general  land  office  or 
his  clerks),  in  permitting  a  paper  to  be  lost  in  his  office  or 
taken  therefrom,  without  any  agency  of  theirs?  Such  a 
result  was  prohibited  by  the  Constitution  of  Texas,  in  force 
when  the  act  of  29th  of  November,  1871,  was  passed,  and 
by  every  constitution  Texas  has  ever  had.  Will  this  court 
give  to  an  act  of  the  Legislature  a  construction  which  must 
produce  such  a  result?     I  think  not." 

This  view  of  the  question  was  affirmed  by  the  Supreme 
Court  in  Snider  v.  Methvin,  60  Texas,  .487. 


400  BENCH   AND    BAli   OF   TEXAS. 


JOHN    H.    REAGAN. 


The  distinguished  subject  of  this  memoir  was  born  in 
Sevier  County,  Tennessee,  on  the  8th  of  October,  1818. 
His  education  was  confined  to  the  advantages  afforded  by 
the  common  schools  and  an  academic  course.  He  immigrated 
to  the  Republic  of  Texas  in  1839,  and  settled  east  of  the 
Brazos.  His  first  occupation  was  that  of  a  surveyor  of 
lands,  which  he  pursued  until  the  year  1843.  Soon  after 
his  arrival  in  Texas,  in  1839,  he  was  engaged  in  the  battles 
which  occurred  that  year  with  the  Cherokee  Indians,  and 
was  with  General  Torrant  in  his  expedition  to  the  Cross 
Timbers  in  1843.  While  engaged  in  the  occupation  of  a 
surveyor  he  studied  law  and,  having  obtained  his  license  in 
1844,  he  began  the  practice  of  his  profession  at  Old  Fort 
Houston,  now  Palestine,  where  he  still  resides. 

In  1847  he  was  elected  to  the  Legislature,  and  acquired 
reputation  by  his  energetic  advocacy  of  measures  affecting 
the  general  interest  of  the  State.  In  1852  he  was  elected 
district  judge  and  was  re-elected  to  that  office  in  1856. 
In  1857  he  was  elected  to  the  United  States  Congress  from 
the  Eastern  District  and  was  re-elected  by  a  large  majority 
in  1859. 

Judge  Reagan,  until  1861,  had  always  been  a  Democrat 
of  conservative  views,  but  the  triumph  of  sectionalism  in 
the  election  of  Mr.  Lincoln  upon  a  platform  avowedly  hos- 
tile to  Southern  interests  caused  him  to  advocate  the  seces- 
sion of  Texas  from  the  Union  and  the  resumption  of  her 
sovereignty  as  an  Independent  Republic,  and  in  January, 
1861,  while  still  a  member  of  Congress,  he  was  elected  a 
delegate  to  the  State  Convention  at  Austin.  He  immediately 
left  Washington  and  took  his  seat  in  that  body.  By  re- 
quest of  the  members  he  addressed  the  convention,  and  in 


JOHN   H.  REAGAN.  401 

an  able  and  pathetic  speech  presented  to  it  his  views  upon 
the  great  question  which  was  then  agitating  the  country  and 
gave  the  reasons  by  which  he  was  actuated  in  advising  that 
Texas  should  resume  her  sovereignty.  When  the  secession 
of  the  State  was  accomplished  he  was  elected  a  deputy  to 
the  Provisional  Congress  of  the  Southern  States,  which  was 
about  to  convene  at  Montgomery,  and  participated  actively 
in  framing  the  Constitution  and  organizing  the  Provisional 
Government  of  the  Confederate  States. 

Judge  Reagan  is  a  man  of  great  tenacity  of  purpose  and 
firmness  of  character,  and  his  business  capacity  is  equaled 
only  by  the  soundness  of  judgment  which  directs  it.  He 
is  a  man  of  intense  convictions  and  unswerving  in  the  pur- 
suit of  noble  ends  by  noble  means.  Mr.  Davis  had  ob- 
served these  traits  of  his  character  while  Judge  Keao-an  was 
a  member  of  Congress,  and  when  he  entered  upon  the 
Presidency  of  the  new  Confederation  he  immediately 
selected  him  as  a  member  of  his  Cabinet.  As  Postmaster- 
General  of  the  Confederate  States  his  services  were  univer- 
sally recognized  as  efficient  in  the  highest  degree.  Upon 
him  devolved  the  task  of  organizing  and  putting  in  motion 
the  postal  service  of  a  new  nationality  containing  millions 
of  people,  and  to  maintain  it  amid  the  march  and  counter- 
march of  armies,  the  transportation  of  hundreds  of  thousands 
of  troops,  the  shocks  of  battle,  in  the  face  of  invading 
hosts,  in  the  van  of  retreating  armies,  to  re-establish  cap- 
tured and  desolate  lines,  and  keep  open  communication 
with  all  parts  of  the  Confederacy.  How  well  and  thor- 
oughly he  accomplished  this  task  belongs  to  the  history  of 
the  world,  and  is  known  among  all  civilized  men. 

He  was  faithful  and  true  to  the  Confederacy.  He  had 
espoused  its  cause  with  all  the  ardor  and  sincerity  of  his 
nature,  and  when  he  accepted  a  place  in  the  Cabinet  of  Mr. 
Davis  it  was  the  seal  of  his  unswerving  fidelity  and  devo- 
tion. He  was  true  to  the  Confederate  President  in  all  the 
vicissitudes  of  his  fortune,  and  was  with  him  at  the  time 
of  his  capture. 

He  was  for  some  time  held  a  prisoner  at  Fort  Warren,  in 
Boston   harbor,  and  while    there  counseled   the  people  of 

2G 


402  BENCH  AND  BAR  OF  TEXAS. 

Texas  to  confer  the  right  of  suffrage  upon  the  most  intelli- 
gent portion  of  the  negroes,  which  was  at  that  time  dis- 
tasteful to  them,  and  his  "  Fort  Warren  letter,"  as  it  was 
called,  invoked  upon  him  a  torrent  of  abuse  and  contumely. 
They  would,  however,  have  gained  nothing  by  the  adoption 
of  his  views,  nor  did  they  lose  anything  by  rejecting  them  ; 
for,  as  subsequent  events  show,  the  dominant  party  deter- 
mined to  stop  short  of  nothing  but  universal  suffrage, 
which,  though  intended  as  a  policy  of  revenge,  was  the  most 
fortunate  measure  for  the  South  and  the  most  merciful  of 
all  Eepublican  acts,  since  it  has  given  to  the  South  the 
power  of  asserting  its  rights  in  the  National  Congress, 
overthrew  the  party  which  forced  it  upon  the  Southern 
people,  and  has  given  a  Democratic  President  to  the  coun- 
try in  1885. 

On  being  released  from  prison.  Judge  Reagan  returned 
to  his  impoverished  home  in  Texas,  and  with  a  brave 
heart  set  about  providing  a  support  for  his  family.  Hav- 
ing been  re-enfranchised  in  1872  he  was  elected  in  1875  to 
the  convention  assembled  for  the  purpose  of  conforming 
the  Constitution  of  Texas,  which  had  been  forced  upon  it 
by  military  authority  in  1868,  to  the  rights  and  dignity  of 
the  State  and  the  wants  of  the  people.  In  this  assembly 
he  was  an  able  advocate  of  those  fundamental  principles 
and  guarantees  upon  which  the  future  welfare  of  the  State 
depended,  and  was  the  author  of  the  provisions  protecting 
actual  citizens  and  those  seeking  homes  in  it  from  fraudu- 
lent claims  and  forged  titles. 

In  1874  he  was  elected  from  his  old  district  to  a  seat  in  the 
Forty-fourth  Congress,  and  was  re-elected  to  the  Forty-fifth, 
Forty-sixth,  Forty-seventh  and  Forty-eighth,  and  has  been 
re-elected  to  the  Forty-ninth  Congress;  and  during  all  this 
time  he  has  devoted  his  energies  as  faithfully  to  the  service 
of  his  constituency,  to  the  interest  of  the  Union  and  to  the 
honor  of  its  flag,  as  he  did  to  the  cause  of  the  Confederacy. 

His  career  in  Congress  has  been  particularly  distinguished 
for  the  ability  and  constancy  with  which  he  has  advocated 
the  protection  and  promotion  of  the  industrial  and  com- 
mercial interest  of  the  country.     His  Inter-State  Commerce 


JOHN    H.  REAGAN.  403 

bill,  which  has  been  for  a  long  time  pending  before  Con- 
gress, is  more  largely  promotive  of  the  interest  of  the 
people  than  all  the  revenue  bills,  bills  for  internal  improve- 
ments and  measures  of  finance  that  have  ever  been  invented, 
and  is  one  of  the  most  important  measures  ever  brought  be- 
fore Congress.  For  the  passage  of  this  bill  he  has  made  a 
faithful  and  able  fight.  He  has  had  to  contend  against  the 
great  railroad  and  steamship  companies,  all  the  monopolies 
and  nearly  every  great  raonied  corporation  in  the  country. 
But  he  is  still  persistent  and  strenuous  in  his  efforts  to  ac- 
complish this  great  public  good,  and  is  still  hopeful  of  suc- 
cess through  the  power  of  the  people;  and  if  he  is  successful 
in  procuring  his  bill  to  be  enacted  into  a  law  of  the  land, 
it  will  cause  him  to  be  designated  as  a  benefactor  of  his 
country,  and  his  name  to  be  handed  down  through  the  cor- 
ridors of  time,  as  one  whose  foresight,  ability  and  perse- 
verence  achieved  a  triumph  for  the  people  over  the 
oppressive  aggregations  of  wealth  and  the  monopolies  of 
commerce  that  will  ripen  its  beneficent  fruits  for  both  the 
present  and  the  coming  generations  of  men. 

Judge  Reagan  is  an  eminent  lawyer  and  an  able  practi- 
tioner. His  calm  and  penetrating  perception,  correct 
judgment  and  sound  "common  sense"  enable  him  to 
grasp  and  digest  a  question  in  all  its  practical  as  well  as 
philosophical  bearings,  and  he  is  an  excellent  counselor. 

His  plain,  frank  and  self-possessed  manners  impress  his 
honesty  and  uprightness  of  purpose  upon  all  who  come  in 
contact  with  him,  and  his  well  known  character  engages 
universal  popularity  and  esteem  —  the  merited  rewards  of 
an  able  lawyer,  a  faithful  oflicer,  a  true  patriot  and  a  good 
man. 


404  BENCH  AND  BAR  OF  TEXAS. 


Thomas  Neville  Waul. 


The  distinguished  subject  of  this  sketch  is  a  native  of 
South  Carolina,  and  was  born  near  Statesburg  on  the  5th 
day  of  January,  1815.  His  paternal  ancestors  immigrated 
to  Virginia  at  an  early  period,  and  their  descendants  settled 
in  New  Jersey  and  the  Carolinas.  Thomas  was  the  only 
child  of  bis  parents,  and  is  the  only  remaining  descendant 
of  the  Carolina  branch  of  the  family.  He  lost  his  mother 
during  his  infancy,  but  his  early  scholastic  training  was 
ample,  and  at  the  age  of  fifteen  years  he  entered  the  Uni- 
versity of  South  Carolina,  but  was  compelled  to  abandon 
his  collegiate  studies  before  graduation,  in  consequence  of 
the  death  of  his  father  and  his  limited  means.  His  health, 
too,  at  this  time  was  feeble,  but  being  thrown  upon  his  own 
resources  he  promptly  buckled  on  his  armor  and  boldly 
entered  the  battle  of  life. 

In  recognition  of  the  kindness  of  his  stepmother  he 
generously  presented  her  with  his  interest  in  the  small  estate 
left  by  his  father,  and  having  obtained  recommendations 
and  testimonials  of  his  character  and  scholarship,  he  set  cut 
in  1832  on  horseback  to  seek  his  fortune  and  a  home  in  the 
West.  Arriving  at  Florence,  Alabama,  fatigue  and  feeble- 
ness of  health  caused  him  to  halt,  and  he  determined  to 
seek  employment  at  that  place.  His  intelligence  and  culti- 
vated manners  made  a  favorable  impression  upon  the  peo- 
ple, and  at  the  age  of  seventeen  years  he  was  elected 
principal  of  the  Florence  Male  Academy.  But  he  had  at 
an  early  age  fixed  his  heart  on  the  profession  of  law,  and, 
having  taught  one  session,  he  resigned  and  received  the 
highest  testimonials  from  the  trustees  of  the  school.  With 
these  as  his  introduction,  he  proceeded  to  Vicksburg,  Mis- 
sissippi, where  he  became  acquainted  with  the  afterwards 


THOMAS    NEVILLE    WAUL.  405 

fiimoui  Sergeant  S.  Prentiss,  and  a  mutual  esteem  was  the 
natural  result  of  their  acquaintance.  Mr,  Prentiss  soon 
discovered  the  genius  and  budding  talents  of  the  young 
visitor  and  admitted  him  as  a  student  into  his  office.  Here, 
in  the  office  of  Messrs.  Prentiss  &  Guion,  in  the  glare  and 
glitter  of  prominent  genius  and  legal  talent,  he  was  pre- 
pared for  the  bar  and  inspired  with  sentiments  of  the  high- 
est aspiration  and  the  loftiest  aims.  Having  availed  himself 
to  the  utmost  of  this  excellent  and  brilliant  training,  he 
possessed  the  warmest  friendship  of  Mr.  Prentiss  as  long  as 
that  distinguished  man  lived. 

In  1835  he  was  admitted  to  the  bar  by  the  Supreme  Court 
of  Mississippi,  and  was  soon  afterwards  appointed  district 
attorney  for  the  river  district,  including  the  counties  lying 
along  the  Mississippi  and  the  cities  of  Vicksburg  and 
Natchez,  which  at  that  time  contained  the  most  brilliant 
array  of  legal  talent  in  the  Southwest.  During  this  period 
he  resided  a  short  time  in  Yazoo  City,  and,  after  the  expira- 
tion of  his  term  of  office,  removed  to  Grenada,  where  he 
enjoyed  a  large  professional  patronage,  and  in  a  few  years 
was  enabled  to  abandon  the  general  practice  and  confine 
himself  to  business  in  the  Federal  courts  and  the  hish 
courts  of  the  State. 

In  1850,  having  acquired  an  ample  fortune,  he  removed 
to  Texas  and  established  an  elegant  and  hospitable  home  on 
the  Gaudaloupe,  in  Gonzales  County  ;  but  his  interests  in 
Mississippi  requiring  his  attention,  he  afterwards  located  in 
New  Orleans,  where  he  resumed  and  practiced  his  profes- 
sion with  great  success.  While  he  was  never  a  candidate 
for  a  political  office  during  his  long  residence  in  Mississippi 
and  Louisiana,  he  was  always  a  man  of  strong  political  sen- 
timents and  firm  opinions.  He  was  a  great  admirer  of 
Mr.  Calhoun,  a  thorough  Democrat  of  the  State's  Rights 
school,  a  strict  constructionist  of  the  Constitution,  and 
took  an  active  part  in  public  debates  when  the  principles  of 
his  party  were  assailed.  The  independence  with  which  he 
ahvays  maintained  his  own  views  precluded  the  imputation 
of  ambitious  designs,  while  the  earnestness  and  eloquence 
with  which  he  advocated  the  principles  of  the  Democratic 


401)  BENCH    AND    BAR    OF    TEXAS. 

party  gave  him  a  commanding  popular  influence.  The  rapid 
and  aggressive  progress  of  the  Know-Nothings  summoned 
him  to  the  hustings,  and  his  efficient  opposition  to  the  prin- 
ciples of  that  organization  was  recognized  by  the  Democratic 
party  in  selecting  him  as  its  candidate  for  Congress  in  1859. 
In  this  canvass  he  gained  additional  reputation  and  popu- 
larity by  his  eloquence,  talents  and  force  of  character ;  and 
notwithstanding  that  he  was  defeated  by  the  independent 
candidate,  Hon.  A.  J.  Hamilton,  his  party  valued  the  services 
of  its  champion,  and  he  was  made  an  elector  for  the  State 
at  large  on  the  Breckinrid2;e  ticket  in  1860.  In  this  can- 
vttss  he  predicted  the  coming  storm  and  advised  a  united 
South  and  unity  of  action  as  the  only  means  of  averting 
civil  war.  His  able  appeals  and  their  corollaries  presented 
a  conscientious  acceptance  of  the  situation  to  those  who 
opposed  secession  and  cemented  the  subsequent  views  of 
the  people. 

When  the  State  of  Texas  seceded  from  the  Union  in 
1861,  he  was  chosen  a  member  of  the  Provisional  Congress 
which  convened  at  Montgomery,  in  which  he  urged  the  most 
prompt  and  comprehensive  preparation  for  the  struggle  as 
the  most  effectual  means  of  securing  peace  either  immedi- 
ately or  prospectively,  by  treaty  or  by  war.  The  latter 
having  become  inevitable  before  the  expiration  of  his  term, 
he  declined  election  to  the  Congress  of  the  Confederate 
States  and  determined  to  devote  his  services  to  the  field. 
Returning  to  Texas,  he  raised  and  organized  two  thousand 
men  into  the  command  known  as  "  Waul's  Legion,"  of 
which  he  was  elected  commander.  With  this  he  hastened 
to  join  the  Confederate  troops  concentrating  for  an  attack 
upon  the  Federals  at  Corinth,  but  on  reaching  Holly 
Springs,  he  learned  of  the  defeat  of  the  army  under  Gen- 
erals Price  and  Van  Dorn.  His  knowledge  of  the  topog- 
raphy of  Mississippi  enabled  him  to  render  most  efficient 
service  in  covering  the  retreat  of  General  Pemberton  and 
in  the  subsequent  campaign  and  siege  of  Vicksburg.  The 
details  of  his  brilliant  military  career  belong  to  the  history 
of  the  country.  He  and  his  "Legion"  became  famous, 
first  for  his  2:allant  defense  of  the  Yazoo  Pass,  which  for 


THOMAS    NEVILLE   WAUL.  407 

some  time  saved  Vicksburg  and  the  Mississippi  River  to  the 
Confederacy,  and  then  in  the  heroic  defense  of  that  city. 
After  the  surrender  of  Vicksburg  he  was  promoted  to  the 
rank  of  brigadier-general  for  his  gallant  services,  and 
ordered  to  Texas  to  recruit  his  Legion  to  the  complement  of 
a  brigade.  While  thus  engaged,  the  expedition  of  General 
Banks  threatened  an  invasion  of  the  State.  General  E. 
Kirby  Smith  offered  him  the  command  of  one  of  his  best 
brigades,  which  he  accepted,  and  led  his  command  with  dis- 
tinguished gallantry  and  generalship  in  the  battles  of  Mans- 
field and  Pleasant  Hill.  After  General  Walker  was 
wounded  he  was  placed  in  command  of  the  division,  and 
bore  a  prominent  part  in  the  battle  of  Saline,  or  Jenkins ' 
Ferry,  in  which  he  was  wounded,  and  in  which  the  Federals 
were  driven  from  the  field,  but  with  heavy  loss  to  the  Texas 
troops. 

At  the  close  of  the  war  General  Waul  returned  to  his 
home  on  the  Gaudaloupe,  and  in  1865  was  elected  against 
his  wishes  a  member  of  the  reconstruction  convention. 
His  eminent  ability  and  influence  could  again  be  of  great 
value  to  his  fellow-citizens.  His  country  demanded  his 
services,  and  to  whatever  that  required  his  patriotism 
yielded  obedience.  He  accepted  the  position  and  employed 
his  best  efforts  to  secure  the  adoption  of  a  constitution 
which  would  remove  all  grounds  of  sectional  animosity  and 
at  the  same  time  preserve  a  recognition  of  the  rights  of  the 
people  and  of  the  State  of  Texas.  He  never  viewed  the 
overpowering  of  the  South  as  a  humiliation  or  felt  that  sub- 
mission to  the  result  of  the  war  was  a  disgrace,  and  in  a 
spirit  of  noble  manhood  and  a  high  sense  of  honor  he 
demanded  a  guarantee  of  the  inalienable  and  just  rights  of 
a  people  vanquished  in  honorable  and  justifiable  war  as  the 
only  means  of  establishing  permanent  peace  and  national 
prosperity.  These  sentiments  he  advocated  and  for  these 
principles  he  contended  with  a  serene  boldness  and  conscien- 
tious earnestness,  with  a  firm  and  unconquerable  spirit  that 
excited  the  admiration  of  those  who  coincided  in  his  views 
and  the  respect  of  those  who  opposed  his  efforts. 

Having  lost  the  greater   portion  of  his  property  by  the 


408  BENCH  AND  BAR  OF  TEXAS. 

result  of  the  war,  he  found  it  necessary  to  return  to  the 
practice  of  the  law  which  he  had  abandoned  some  time 
before  the  beginning  of  the  strife,  and  promptly  yielding  to 
the  exigencies  of  his  condition,  he  removed  to  Galveston, 
where  his  talents  and  integrity  soon  gained  him  a  large 
practice  and  placed  him  in  the  front  rank  of  the  lawyers  of 
the  State.  He  has  always  taken  a  deep  interest  in  promot- 
ing and  elevating  his  profession,  and  was  for  several  years 
President  of  the  Texas  Bar  Association. 

His  wide  genius  and  comprehensive  views  have  led  him 
to  devote  his  practice  chiefly  to  commercial  matters  and 
cases  in  admiralty,  and  to  suits  in  the  Federal  courts  aris- 
ing out  of  large  transactions  and  involving  important  prin- 
ciples of  Federal  jurisprudence.  Yet  he  is  equally  skilled  in 
all  the  branches  of  law  and  thoroughly  conversant  with 
every  feature  of  legal  science.  His  intellectual  quidities, 
naturally  of  a  high  order,  have  been  assiduously  cultivated 
to  the  highest  standard  of  professional  attainment.  His 
intuitive  perception,  close  analysis  and  accurate  judgment 
promptly  seize  upon  and  resolve  the  gist  of  the  most  ab- 
struse legal  proposition,  while  his  ready  discrimination 
between  the  specious  and  the  real,  between  truth  and  error, 
impress  his  positions  with  a  certainty  which  it  is  equally 
fatal  for  opposition  either  to  assail  or  avoid. 

He  early  cultivated  the  habit  of  preparing  his  cases  with 
unsparing  pains  and  thorough  research,  and  his  apt  powers 
of  analogy  and  knowledge  of  precedent  afford  him  abun- 
dant resources  for  parity  of  reasoning  and  happy  illustration, 
and  he  is  rarely  at  a  loss  for  imagery  and  example.  Yet  he 
is  a  man  of  great  intellectual  independence,  and  however 
well  he  may  be  acquainted  with  the  opinions  of  others,  he 
promptly  subjects  the  solution  of  every  question  to  the 
color  of  his  own  views  and  the  dictates  of  his  own  judg- 
ment. 

While  he  has  made  himself  a  profound  lawyer  his  thirst 
for  knowledge  and  his  love  of  literature  have  led  him 
through  the  fields  of  general  science  and  his  taste  has  found 
congenial  food  in  every  branch  of  polite  learning  ;  and  this 
the  brilliancy  of   his  intellect  and  the    versatility  of   his 


THOMAS    NEVILLE    WAUL.  409 

genius  have  enabled  him  to  accomplish  without  apparent 
detiaction  from  his  professional  ability.  He  is  particularly 
fond  of  botany,  and  had  he  devoted  his  talents  to  that 
department  of  science  he  would  no  doubt  have  roamed  as 
luminously  through  the  blooming  parterres  of  nature  as  he 
does  through  the  rugged  cope  of  law  and  equity. 

His  dauntless  moral  and  physical  courage  enabled  him  to 
surmount  every  obstacle,  to  withstand  every  temptation  and 
to  pursue  the  path  of  duty  dictated  by  integrity  with  un- 
swerving effort,  and  his  success  is  the  merited  reward 
which  virtue  bestows  upon  talent  and  industry. 

His  personal  characteristics  present  a  clear,  well  defined, 
arching  over  and  blending  of  virtues  as  polished  as  the 
chiseled  structure  of  his  intellectual  and  professional  attain- 
ments. He  is  a  man  of  amiable  qualities  and  courteous 
manners.  His  magnanimity  and  love  of  justice  subjects 
his  conduct  to  the  regimen  of  the  Golden  Rule,  and  these 
qualities  are  chastened  and  confirmed  by  the  cardinal 
Christian  virtues.  He  is  a  consistent  member  of  the  Bap- 
tist Church,  and  has  planted  a  noble  influence  and  example 
in  the  path  of  Christianity.  He  was  married  in  1835  to 
Miss  Mary  iSimmons,  a  cultured  and  accomplished  young 
lady  of  Georgia,  a  lady  whose  qualities  were  fashioned  in 
the  same  mould  with  his  own,  whose  graces  adorn  his 
elegant  home  and  link  the  golden  chain  of  domestic  felicity. 

The  conduct  of  this  noble  lady  during  the  war  was  illus- 
trative of  the  truest  type  of  Southern  womanhood.  Her 
career  was  indeed  romantic  and  inspiring.  When  her  hus- 
band entered  the  army  she  abandoned  her  elegant  home 
with  all  its  enchanting  comforts  and  became  a  permanent 
attache  of  his  command,  both  in  camp  and  in  the  field. 
Her  kindly  hand  was  felt  wherever  there  was  need  of  sym- 
pathy, tenderness  and  care.  She  visited  the  sick  and  at- 
tended the  wounded  until  her  experience  made  her  a  most 
efficient  member  of  the  staff  in  organizing  corps  of  nurses, 
and  in  preparing  and  regulating  hospitals. 

On  two  occasions  she  was  present  on  the  field  of  battle, 
and  exposed  to  the  danger  of  shot  and  shell.  She  was  in 
Fort  Pemberton,  on  the  Yazoo,   while  it  was  being  bora- 


410  BENCH  AND  BAK  OF  TEXAS. 

barded  by  the  iron-clad  fleet  under  General  Ross  and  gal- 
lantly defended  by  her  husband,  and  could  only  be  induced 
to  leave  it  at  night  upon  his  urgent  solicitation,  when  she 
crossed  the  river  in  point  blank  range  of  the  enemy's  can- 
non. While  General  Waul  was  in  the  thickest  of  the  fight 
at  the  battlfe  of  Mansfield,  one  of  his  orderlies  dashed  up 
and  informed  him  that  Mrs.  Waul  was  about  one  hundred 
yards  in  the  rear.  The  General,  it  may  be  supposed,  had 
no  time  then  to  realize  the  mingled  impulses  of  surprise, 
admiration  and  alarm  which  must  have  flashed  across  his 
mind  ;  but  he  commanded  the  orderly  to  return  and  tell  her 
she  must  leave  the  field  immediately  and  return  to  Mans- 
field, that  he  did  not  wish  at  that  time  to  be  troubled  with 
the  care  of  women.  An  hour  later,  after  the  enemy  had 
been  driven  back,  the  orderly  returned  with  a  large  basket 
on  his  arm,  and  stated  that  when  he  delivered  the  message 
the  lady  said:  "Well,  I  knew  the  General  had  had  no 
breakfast,  that  he  would  have  a  hard  day's  work,  and  I 
simply  wished  to  bring  him  a  luncheon."  The  more  than 
timely  refreshments  were  then  spread  before  the  hungry 
stafi",  and  it  required  no  wine  or  strong  drink  to  inspire  the 
hearty  toast  and  ardent  wishes  for  the  health  of  the  noble 
lady. 

After  the  battle  she  called  on  General  Taylor,  the  com- 
mander-in-chief, at  his  quarters,  and  was  met  by  his  adju- 
tant, who  in  the  most  courteous  manner  offered  to  prefer 
her  wishes  to  the  General;  but,  politely  declining  his  ser- 
vices, she  desired  a  personal  interview.  When  General 
Taylor  appeared,  as  afterwards  related  by  him,  she  said : 
"  General,  I  know  youi-  time  is  precious,  and  I  wish  to 
avoid  the  complication  and  delay  of  your  regular  forms. 
We  have  a  great  many  soldiers  badly  wounded,  many  dead 
and  many  dying.  No  preparations  have  been  made  for 
them,  and  they  need  food,  medicine  and  clothing."  The 
General  with  his  characteristic  promptness,  turned  to  his 
adjutant  and  said:  "Major  Surget,  issue  an  order  to  all 
quartermasters  and  commissaries  to  deliver  to  Mrs.  Waul 
all  supplies  of  every  kmd  captured  from  the  enemy  which 
she  may  order  for  the  use  of  the  hosjMtal;"  and  the  hospi- 


THOMAS   NEVILLE   WAUL.  411 

tal  at  Mansfield  was  one  of  the  best  furnished  in  the  army 
of  the  Confederacy. 

As  the  author  has  had  occasion  to  remark  in  another 
work,  history  will  ever  accord  the  higliest  meed  of  praise 
to  the  noble  women  of  the  South.  At  the  first  sounding  of 
the  tocsin  of  war  they  buckled  on  the  armor  of  their  hus- 
bands, fathers,  brothers  and  sons,  and  bade  them  go  with 
all  the  exulting  pride  and  patriotic  spirit  of  the  dames  of 
Sparta.  And  amid  all  the  vicissitudes  of  war,  and  all  the 
trials  and  sufferings  that  fell  to  their  lot,  they  maintained 
the  same  spirit  of  defiance,  the  same  calm,  dignified  de- 
meanor, an  abiding  faith  and  unswerving  constancy  un- 
equaled  by  the  maids  and  matrons  of  Rome  in  the  palmiest 
days  of  heroism.  If  they  did  not  lop  off  the  head  of  a 
Holofernes,  sink  ships  of  war,  or  scale  the  frowning  ram- 
parts of  an  Orleans,  they  inspired  the  soldiers  of  the  Con- 
federacy with  that  valor  which  gained  the  admiration  of  the 
world.  No  Susanna,  Artemisia,  or  Maid  of  Orleans  ever 
displayed  a  higher  degree  of  genuine  womanly  fidehty  and 
heroism. 

Nor  did  their  devotion  wane  when  the  smoke  of  battle 
cleared  away  and  the  Southern  flag  lay  trailing  in  the  dust ; 
but  with  the  same  lofty  spirit  and  virtuous  pride  they  held 
the  rod  of  scorn  over  those  of  their  countrymen  who,  for 
one  cause  or  another,  would  have  dragged  them  down  to  the 
level  of  that  state  of  society  which  a  revengeful  policy 
sought  to  establish. 

The  mothers  of  the  South  have  indeed  had  a  hard  time ; 
but  while  the  years  have  rolled  away,  every  month  and 
day  have  left  an  effacing  mark  upon  the  sources  of  their 
troubles,  and  the  great  clock  of  destiny  has  summoned  the 
daughters  of  the  land  to  a  sphere  of  happiness  and  useful- 
ness undreamed  of  in  older  days. 

All  honor  forever  to  the  noble  women  of  the  South.  The 
seal  of  their  patriotism  is  stamped  with  more  than  mortal 
superscription.  Their  virtues  will  forever  embellish  the 
pages  of  history,  and  hang  upon  the  walls  of  time  like 
*'  apples  of  gold  in  pictures  of  silver." 


412  BENCH  AND  BAR  OF  TEXAS. 


W.  p.  Ballinger. 


"William  Pitt  Ballinger  was  born  in  Barboursville,  Knox 
County,  Kentucky,  on  the  25th  of  September,  1875.  His 
grandfather,  Colonel  Richard  Ballinger,  was  a  native  of 
Virginia,  and  an  aid-de-camp  to  General  St.  Clair  at  the 
time  of  the  defeat  of  that  general  by  the  Indians.  He  re- 
moved to  Kentucky  in  the  early  period  of  its  settlement, 
and  was  the  first  clerk  of  Knox  County,  was  afterwards  a 
member  of  the  State  Senate,  and  lived  to  a  great  age,  highly 
respected  for  his  intelligence  and  personal  qualities.  His 
father,  James  Franklin  Ballinger,  was  a  native  of  Barbours- 
ville, and  spent  the  greater  part  of  his  life  as  clerk  of  the  courts 
in  Knox  County.  He  was  a  soldier  of  the  War  of  1812,  and 
at  the  age  of  seventeen  years  was  taken  prisoner  at  Dudley's 
defeat,  and  compelled  to  run  the  gauntlet  for  his  life.  In 
1837  he  was  a  member  of  the  Kentucky  Legislature,  and 
in  1840  was  an  elector  on  the  Whig  ticket.  He  removed 
to  Texas  in  1868,  and  died  at  Houston  in  1875,  in  the  eighty- 
second  year  of  his  age,  and  in  the  conscientious  serenity  of  a 
beneficent  and  useful  life. 

The  early  education  of  William  Pitt  Ballinger,  was  ob- 
tained in  the  schools  of  his  native  town,  and,  having  spent 
two  years  at  St.  Mary's  College,  near  Lebanon,  Kentucky, 
he  received  a  thorough  training  in  the  oflice  of  his  father, 
and  at  an  early  age  became  familiar  with  the  business  of 
the  courts,  which  laid  the  foundation  of  his  great  success  at 
the  bar.  In  1843,  his  health  requiring  a  milder  climate,  he 
accepted  an  invitation  from  his  uncle,  Judge  James  Love,  of 
Galveston,  to  remove  to  that  place,  and  immediately  began 
the  study  of  law  in  his  oflice  with  a  vigor  of  determination 
which  predestined  the  attainment  of  professional  eminence. 

When  the  Mexican  War  began  he  joined  a  volunteer  com- 


W.  p.  BALLINGEK.  413 

pany  as  a  private  soldier,  but  was  soon  afterwards  elected 
first  lieutenant  of  his  company,  and  was  appointed  adjutant 
of  Colonel  Albert  Sydney  Johnston's  Texas  regiment,  with 
which  he  served  at  the  storming  of  Monterey.  He  returned 
to  Galveston  in  the  fall  of  1846,  and  in  the  spring  of  1847 
obtained  his  license  and  began  the  practice  of  his  profes- 
sion. He  was  soon  afterwards  admitted  as  a  partner  in  the 
firm  of  Jones  &  Butler,  who  did  the  largest  practice  at  the 
Galveston  bar,  and  was  thus  engaged  at  the  start  in  the 
most  important  cases  in  the  courts.  In  1850,  upon  the 
recommendation  of  the  judges  of  the  Supreme  Court  and 
leading  members  of  the  Legislature,  he  was  appointed 
United  States  attorney  for  the  District  of  Texas,  and  filled 
that  office  with  efficiency  and  ability. 

In  1859,  he  was  employed  as  leading  counsel  in  the  great 
cases  involving  the  title  to  the  wharf  property  and  water 
front  of  the  city  of  Galveston,  23  Texas,  349.  The  Congress 
of  the  Texas  Eepublic  had,  in  1836,  granted  to  Michael  B. 
Menard,  the  east  end  of  Galveston  Island  for  the  purpose  of 
building  a  city,  and  the  question  in  dispute  was  whether  or 
not  this  grant  included  the  adjacent  flats  which  were  period- 
ically submerged,  and  Mr.  Ballinger,  in  contending  for  this 
comprehension  of  the  grant,  enters  into  an  elaborate  discus- 
sion of  both  the  common  and  civil-law  definitions  of  what 
constitutes  a  sea  shore,  and  the  requisites  of  a  dedication  to 
public  uses. 

In  1871  he  declined  a  position  upon  the  Supreme  Bench, 
tendered  him  by  Governor  E.  J.  Davis,  through  his  repug- 
nance to  any  connection  with  his  administration.  He  was 
again  appointed  an  associate  justice,  in  1874,  by  Governor 
Coke,  but  was  induced,  by  the  demands  of  his  private 
affairs,  to  resign  on  the  day  of  his  confirmation. 

In  1875,  he  was  elected  a  member  of  the  convention  which 
framed  the  present  Constitution  of  Texas,  and  was  chair- 
man of  the  committee  on  the  executive  department,  and 
a  member  of  the  judiciary  committee.  He  differed  widelj' 
in  his  views  from  a  majority  of  the  convention.  He  was 
opposed  to  an  elective  judiciary,  which  he  feared  would 
drag  the  ermine  through  the  mire  of  political  strife,  and 


414  BENCH  AND  BAR  OF  TEXAS. 

prove  fatal  to  the  purity  and  efficiency  of  the  bench,  and 
especially  if  attended  with  short  terms  and  constant  rota- 
tion in  office.  He  favored  salaries  adequate  to  obtain  com- 
petent public  service,  and  protested  against  the  curtailment 
of  executive  functions  necessary  to  an  efficient  administra- 
tion of  the  government ;  and,  failing  to  impress  these  views, 
he  opposed  the  adoption  of  the  Constitution  and  voted 
against  it  at  the  polls. 

In  1877  he  was  recommended  by  the  Governor  of  Texas 
and  all  the  judges  of  the  high  courts,  regardless  of  political 
views,  for  the  position  on  the  bench  of  the  Supreme  Court 
of  the  United  States,  made  vacant  by  the  resignation  of 
Judge  Davis,  and  the  Texas  delegation  in  Congress  urged 
President  Hays  to  appoint  him  to  that  place ;  but  partisan 
and  sectional  spirit  reigned  supreme  at  that  time  in  Wash- 
ington and  dictated  an  opposition  which  could  spring  only 
from  that  origin.  In  1879  Governor  Eoberts  tendered  him 
the  appointment  as  one  of  the  members  of  the  Commission 
of  Appeals,  but  he  declined  the  office,  and  has  steadily 
cherished  a  devotion  and  application  to  the  duties  of  his 
profession,  which  no  allurements  of  office  or  public  honors 
could  supplant  or  abate. 

Judge  Ballinger  was  a  Whig  as  long  as  that  party  main- 
tained a  distinct  organization,  and  still  adheres  to  the  main 
features  of  its  political  faith.  He  was  not  a  sympathizer 
with  the  extreme  doctrines  of  the  State's  rights  school, 
and  did  not  favor  the  theory  and  principle  of  secession. 
He  warmly  opposed  it  as  an  unwise  and  fatal  measure,  but 
when  it  became  an  acccomplished  fact  and  he  saw  no  other 
alternative  but  success  or  subjugation  for  the  South,  he 
repelled  the  idea  of  a  union  by  force,  and  gave  his  heart 
and  soul  to  the  success  of  the  Confederacy,  trusting  that  a 
reunion  might  eventually  be  accomplished  by  choice  and  a 
returning  sense  of  the  folly  of  disunion.  He  was  one  of 
the  committee  sent  by  the  people  of  Galveston  to  Rich- 
mond to  procure  cannon  for  the  defense  of  the  city,  and 
while  on  this  mission  he  was  appointed  Confederate  States' 
receiver,  and  performed  the  duties  of  that  office  during 
the  continuance  of  the  w^ar.     After  the  capitulation  of  the 


W.  p.  BALLINGER.  415 

army  of  Northern  Virginia  he  was  sent  by  Governor  Murray 
as  the  representative  of  the  civil  authority,  in  company 
with  Colonel  Ashbell  Smith,  on  the  part  of  the  military, 
to  New  Orleans  to  negotiate  for  the  surrender  of  the 
State,  and  if  possible  prevent  its  military  occupation.  On 
returning  to  Galveston  he  resumed  the  practice  of  his 
profession,  and,  while  voting  since  that  time  with  the 
Democratic  party,  he  is  still  independent  in  his  views  upon 
public  questions  and  devoid  of  all  political  aspirations. 

Beginning  the  practice  of  law  with  ample  qualifications, 
and  amid  auspicious  circumstances,  Judge  Ballinger  has 
steadil}''  advanced  to  the  attainment  of  the  highest  profes- 
sional eminence  until  he  has  no  superior  at  the  bar  of 
Texas.  With  intellectual  endowments  of  a  high  order,  his 
mind  has  been  trained  to  a  capacity  for  keen  perception 
and  close  analysis,  his  judgment  tutored  to  accuracy  and 
promptness,  and  his  habits  of  application  adapted  to  the 
sternest  professional  requirements.  Indefatigable  industry 
and  the  love  of  profound  study  respond  to  a  strong  will- 
power, and  in  the  preparation  of  his  cases  no  depth  of 
principle  or  medley  of  circumstance  can  escape  the  edge 
of  his  comprehension,  no  obstacle  baffle  his  determination 
to  eliminate  truth  and  justice,  and  no  presentation  allure 
him  from  the  true  elements  of  the  issue. 

Subsidiary  to  these  qualities  he  possesses  reasoning 
powers  of  a  high  order.  His  logic  is  strong,  clear  and 
closely  knit,  and  appeals  directly  to  reason  rather  than  to 
sympathy  or  hallucination.  While  his  language  is  chaste 
and  correct  he  does  not  sacrifice  clearness  for  embellish- 
ment, nor  obs<;ure  the  stamens  of  fact  with  the  carollas  of 
speech. 

One  of  the  best  arguments  in  the  Texas  reports  was  made 
by  Judge  Ballinger  in  the  case  of  Webster  v.  Heard,  32 
Texas,  685.  David  Webster,  who  died  in  the  city  of  Galves- 
ton in  1856,  left  a  will  in  which  he  emancipated  his  servant 
woman,  Betsy,  and  bequeathed  to  her  his  entire  property, 
coupled  with  a  trust  lodged  with  a  lady  friend  in  Georgia. 
His  heirs,  residing  in  the  State  of  New  York,  contested  the 
validity  of   the  will.     Betsy    and    her   trustee    employed 


416  BENCH  AND  BAR  OF  TEXAS. 

Messrs.  Porter  and  Balliiiger  to  maintain  her  rights,  and 
deeded  them  certain  lots  in  Galveston  as  compensation  for 
their  services.  Thej  established  the  validity  of  the  will  in 
the  face  of  strong  popular  prejudice,  and  afterwards  con- 
veyed the  property  to  Heard.  Betsy's  rights  were  safe, 
and  there  the  matter  rested  until  the  year  1866,  when  a 
scalawag  Radical  and  grace-fallen  preacher  turned  lawyer 
and  instigated  Betsy  to  bring  suit  for  the  recovery  of  the 
fees  paid  her  attorneys,  upon  the  ground  that  her  disabili- 
ties were  not  removed  and  her  freedom  was  not  consum- 
mated until  established  by  the  result  of  the  war. 

Mr.  Porter  was  then  dead,  and  Judge  Ballinger  made  the 
defense,  and  Chief  Justice  Morrill,  in  his  opinion  main- 
taining the  validity  of  the  conveyance,  observed  that  "  had 
the  plaintiff,  instead  of  expending  what  she  has  in  this  suit, 
appropriated  the  same  in  erecting  a  monument  over  the 
grave  of  the  lamented  Porter,  and  inscribed  thereon  what 
he  did  for  her,  in  the  furtherance  of  the  kindness  and 
benevolence  of  him  whose  name  she  assumes,  she  would 
thereby  have  given  stronger  proof  than  she  now  has  that 
her  gratitude  has  not  yielded  to  her  avarice." 

In  1854  Judge  Ballinger  formed  a  copartnership  with 
Thomas  M.  Jack,  a  man  of  sttikingly  similar  personal 
qualities  and  professional  traits,  which  inspired  a  congeni- 
ality and  accord  of  co-operation  between  them,  which  con- 
duced greatly  to  the  success  of  the  firm  ;  and  this 
association  continued  until  the  death  of  Col.  Jack  in  1880. 
He  was  also  a  brother-in-law  of  the  latter,  having  married 
his  sister.  Miss  Hattie  P.  Jack,  of  Brazoria  County,  in  1850. 
Immediately  after  his  marriage  he  established  the  elegant 
residence  in  Galveston  which  is  still  his  home  —  a  seat  of 
refinement  and  hospitality,  which  his  accomplished  lady 
adorns  with  every  grace.  He  subsequently  formed  a  co- 
partnership with  M.  F.  Mott,  to  which  J.  W.  Terry  has 
since  been  admitted  ;  and  this  firm  continues  as  one  of  the 
most  able  and  successful  in  the  State. 


J.  W.  THROCKMORTON.  417 


.T.   W.   THROCKMORTON. 


James  W.  Throckmorton,  ex-Governor  ot  Texas,  was 
born  in  Sparta,  Tennessee,  on  the  1st  day  of  February, 
1825.  His  father,  Dr.  William  E.  Throckmorton,  was  a 
physician  of  high  standing  and  an  excellent  gentleman,  and, 
having  removed  to  Texas,  was  one  of  the  first  settlers  of 
Collin  County,  where  he  died  in  1843.  The  county  of 
Throckmorton  was  named  in  commemoration  of  his  virtues. 

The  subject  of  this  sketch  received  a  good  common 
school  education,  and  removed  to  Texas  in  1841.  In  1844 
he  began  the  study  of  medicine  at  Princeton,  Kentucky, 
under  the  supervision  of  his  uncle,  Dr.  James  E.  Throck- 
morton, and,  having  prepared  himself  for  the  medical  pro- 
fession, he  returned  to  Texas  and  enjoyed  for  a  number  of 
years  an  extensive  practice  and  the  reputation  of  being  a 
skillful  physician.  During  the  war  with  Mexico  he  volun- 
teered his  services  to  the  army,  and  was  made  surgeon  of 
Major  Chevallie's  Texas  Eangers.  He  afterwards  resumed 
his  practice  in  Collin  County,  and  pursued  the  duties  of  his 
profession  with  success  until  the  year  1859,  when,  in  con- 
sequence of  failing  health  induced  by  the  exposure  and 
irregularity  attending  an  extensive  medical  practice,  he  de- 
termined to  follow  the  dictates  of  a  natural  taste  and  pre- 
pare himself  for  the  bar,  and,  having  thoroughly  studied 
the  general  principles  of  law,  he  entered  upon  a  successful 
legal  career. 

In  1851  he  was  elected  a  member  of  the  Legislature,  and 
was  re-elected  in  1853  and  1855.  His  eflSciency  as  a  legis- 
lator gained  him  popular  favor  and  reputation,  and  in  1857 
his  services  were  further  recognized  in  his  election  to  the 
State  Senate  for  a  term  of  four  years. 

Durino;  his  career  in  the  Legislature  he  exerted  himself 
particularly  for  the  protection  of  the  frontier  settlements ; 
27 


418  BENCH  AND  BAR  OF  TEXAS. 

for  procuring  the  adoption  of  measures  for  quieting  land 
titles  throughout  the  State,  and  especially  those  pertaining 
to  Peter's  Colony,  which  had  been  for  some  time  unsettled 
and  endangered  ;  for  the  encouragement  of  the  construction 
of  railroads,  and  for  the  establishment  and  endowment  of 
a  munificent  system  of  public  schools.  In  his  vigorous  and 
able  advocacy  of  these  measures  he  stamped  his  genius  and 
his  name  upon  the  cradle  of  the  remarkable  growth  and 
prosperity  of  Texas,  which  has  since  that  time  spread  her 
lap  and  her  history  before  the  world. 

He  had  been  reared  a  Whig  in  politics  and  was  one  of  the 
electors  of  Texas  on  the  Scott  ticket  in  1852,  but  on  the  dis- 
solution of  that  party  at  the  end  of  the  campaign,  spurning 
the  doctrine  of  the  Know-Nothings,  which  was  then  urged  in 
opposition  to  Democracy,  he  afiiliated  with  the  party  of 
Jefferson,  which  he  believed  to  be  the  only  palladium  left 
of  American  liberty  and  of  the  principles  upon  which  the 
American  government  was  founded,  and  it  was  as  a  Demo- 
crat that  he  was  elected  to  the  Texas  Legislature. 

While  he  was  conscious  and  sensitive  of  the  wrongs,  both 
actual  and  prospective,  both  perpetrated  and  threatened 
upon  the  Southern  people  by  the  advent  of  the  Republican 
party  to  power  in  1861,  he  was  firmly  opposed  to  secession 
as  the  proper  mode  and  measure  of  the  redress  of  Southern 
grievances,  and,  in  this  respect,  harmonizing  with  General 
Houston  and  other  eminent  Texans,  he  was  elected,  while  a 
Democratic  member  of  the  State  Senate,  as  a  Union  man 
to  the  Secession  Convention,  in  which  he  employed  his  best 
efforts  to  retain  the  allegiance  of  Texas  to  the  Union  and  for 
the  adoption  of  measures  for  maintaining  its  rights  under  the 
national  flas;.  He  was  earnest  and  conscientious  in  his  views. 
He  was  one  of  the  seven  members  who  voted  against  the 
ordinance  of  secession,  and  it  is  said  that  when  he  an- 
nounced his  vote  some  one  hissed  in  the  crowded  galleries, 
upon  which  he  rose  to  his  feet  and  addressing  the  chair 
said:  "  Mr.  President,  the  rabble  may  hiss  while  patriots 
tremble."  Yet  he  announced  that  if  the  ordinance  was 
adopted  and  ratified  by  the  people,  he  would  maintain  the 
honor  of  his  State  and  defend  her  action  to  the  utmost  of 
his  ability.     This  attitude,  if  it  did  not  attract   respect  to 


J.  W.  THROCKMORTON.  419 

his  views,  gained  him  great  personal  popularity.  It  ac- 
quired respect  for  his  integrity  and  the  purity  of  his  motives, 
and  he  was  applauded. 

Texas  withdrew  from  the  Union  with  the  voice  of  an  over- 
whelming  popular  majority.  Mr.  Throckmorton  had 
plighted  his  fidelity  to  her  wishes,  and,  like  Gen.  Jubal  B. 
Early,  immediately  buckled  on  his  armor  for  her  defense. 
He  commanded  a  company  in  one  of  the  first  regiments  or- 
ganized in  the  State,  and  participated  in  the  capture  of 
Forts  Washita  and  Arbuckle,  on  the  Texas  frontier,  which 
was  accomplished  without  bloodshed  by  the  boldness  and 
celerity  of  the  expedition.  He  was  afterwards  captain  of 
a  company  in  the  famous  Sixth  regiment  of  Texas  cavalry, 
and  rendered  important  service  in  the  Missouri  campaign. 
He  led  his  company  with  distinguished  gallantry  in  the 
Indian  fight  at  Chustennallah  and  in  the  two  day's  battle  at 
Elkhorn. 

In  the  latter  part  of  1862  he  was  transferred  to  Corinth, 
Mississippi,  where  his  command  was  reorganized,  and,  de- 
clining re-election  to  the  captaincy  in  consequence  of  broken 
health,  he  returned  to  Texas,  where  he  was  for  sometime 
disabled  by  disease  for  active  duty.  He  afterwards  per- 
formed efficient  service  in  the  campaign  in  Louisiana,  and 
his  health  again  failing,  he  retired  once  more,  and  was  af- 
terwards appointed  by  the  Governor  of  Texas  to  the  com- 
mand of  State  troops,  with  the  rank  of  brigadier-general, 
in  which  position  he  acquitted  himself  with  honor  and 
efficiency.  He  was  soon  afterwards  elected  to  another  term 
of  four  years  in  the  State  Senate,  and  as  soon  as  the  ses- 
sion of  that  body  was  over  he  resumed  his  command  in  the 
field. 

During  the  last  year  of  the  war  he  was  sent  by  Gen.  E. 
Kirby  Smith,  the  commander  of  the  Trans-Mississippi  De- 
partment, to  treat  with  the  Indian  tribes  inhabiting  the 
Texas  border,  who  had  assumed  a  threatening  attitude 
seriously  endangering  the  safety  of  the  frontier  settle- 
ments. He  succeeded  in  effecting  the  pacification  of  the 
Comanches,  Arapahoes,  Kiowas,  Lipans,  Cheyennes,  and 
other  fierce  tribes,  which  required  great  tact  and  caution. 


420  BENCH  AND  BAR  OF  TEXAS. 

At  the  close  of  the  war  he  returned  to  his  home  and  re- 
sumed the  practice  of  his  profession.  He  quietly  accepted 
the  situation,  and  bent  his  energies  towards  the  re-estab- 
lishment of  peace  and  order  in  conformity  with  the  policy 
of  the  President.  In  1866  he  was  elected  a  member  of  the 
reconstruction  convention  assembled  under  President  John- 
son's proclamation,  and  was  chosen  president  of  that  body. 
In  June,  of  the  same  year,  he  was  elected  Governor  of 
Texas,  under  the  new  Constitution,  by  a  large  majority, 
and  was  inaugurated  on  the  8th  of  August.  As  Governor, 
his  course  was  wise  and  conservative.  His  efforts  were 
directed  to  the  building  up  of  the  waste  places  scourged  by 
the  besom  of  civil  war,  and  to  the  restoration  of  peace  and 
friendship  between  the  dissevered  and  discordant  sections 
of  the  country.  But  his  efforts  were  soon  thwarted  by  the 
partisan  and  revengeful  process  of  reconstruction  adopted 
by  the  Federal  Congress,  which  superseded  the  more  pacific 
and  just  designs  of  the  President.  On  the  9th  of  August, 
1867,  he  was  deposed  by  a  missile  containing  three  lines 
from  an  officer  of  the  United  States  Army  at  New  Orleans, 
who  was  temporarily  in  command  of  the  military  district  of 
Louisiana  and  Texas. 

On  being  thus  forbidden  to  exercise  the  functions  of  his 
office,  to  which  he  had  been  peaceably  elected  by  three-fourths 
of  the  Texan  people.  Gov.  Throckmorton  retired  to  his  home 
in  Collin  County,  where,  disfranchised  in  common  with 
thousands  of  his  fellow-citizens,  he  remained  in  private 
life,  watchful  of  the  progress  of  events,  yet  unable  to  stay, 
even  so  much  as  by  his  vote,  the  tide  of  vengeance  that 
rolled  over  his  State. 

In  1874,  on  the  restoration  of  the  ballot-box  to  the 
people,  he  was  elected  to  a  seat  in  the  United  States  Con- 
gress by  a  large  majority  of  the  voters  of  his  district,  and 
was  re-elected  in  1876.  At  the  expiration  of  his  latter 
term,  in  1879,  he  declined  a  re-election,  and  retired  per- 
manently to  private  life,  in  which,  in  spite  of  the  pains  of 
physical  debility,  he  has  enjoyed  the  reward  of  duty  con- 
scientiously performed,  and  the  highest  respect  of  his 
fellow-citizens. 


J.  W.  THROCKMORTON.  421 

Ex-Governor  Throckmorton  is  a  man  of  versatile  genius 
and  varied  attainments.  His  reading  has  been  extensive 
and  his  mind  has  been  trained  to  those  habits  of  calm 
reflection  and  steady  contemplation  which  lead  to  a  prac- 
tical view  of  things.  While  he  is  naturally  a  man  of  quick 
impulses  and  vehement  sensibilities  his  actions  are  con- 
troled  by  a  sound  judgment  and  tempered  by  a  serene  dis- 
cretion- He  is  a  fluent  and  interesting  speaker,  enthusiastic 
in  the  advocacy  of  his  views,  and  strikes  straight  at  the 
crest  of  opposition.  Yet  he  is  plain  and  terse  in  his  elocu- 
tion and  avoids  all  efforts  at  ornation  or  display. 

He  is  a  man  of  strong  and  sincere  attachments,  and  few 
men  have  more  or  warmer  personal  friends.  He  was  mar- 
ried while  he  was  a  young  physician,  to  Miss  Annie  Katten, 
whose  father  emigrated  at  an  early  day  from  Illinois  —  a 
lady  full  worthy  of  all  he  could  bestow. 


422  BENCH  AND  BAR  OF  TEXAS. 


JOHN  Hancock. 


The  subject  of  this  biography  was  born  in  Jackson 
County,  Alabama,  on  the  24th  day  of  October,  1824, 
whither  his  father,  John  Allen  Hancock,. a  native  of  Vir- 
ginia and  a  planter,  had  emigrated  in  1819.  Having  de- 
voted several  years  of  his  boyhood  to  the  duties  of  the 
farm  and  acquired  the  habits  of  industry  and  economy  in- 
culcated by  that  most  moral  of  all  early  training,  he  was 
afforded  excellent  educational  advantages  in  the  University 
of  East  Tennessee  at  Knoxville,  in  which  he  pursued  a 
thorough  course  of  studies  and  vigorously  availed  himself 
of  his  opportunities. 

In  1843,  he  began  the  study  of  law  under  the  supervision 
of  Judge  William  Taul,  an  eminent  lawyer  of  Winchester, 
and  in  1846  was  admitted  to  the  bar  in  his  native  county. 
But  possessed  of  an  enterprise,  an  ambition  alert  for  grand- 
est possibilities,  he  determined  to  seek  his  fortune  in  Texas, 
and,  having  spent  several  months  in  prospecting  for  a  suit- 
able locality,  he  settled,  in  1847,  at  Austin,  where  he  formed 
a  copartnership  with  Hon.  A.  J.  Hamilton,  and  which  has 
since  been  his  constant  residence.  His  close  application 
and  fidelity  gained  him  friends  and  patronage.  He  soon 
acquired  distinction  and  a  large  practice  at  the  bar,  and  in 
1851,  when  but  twenty-six  years  of  age,  was  elected  judge 
of  the  Second  Judicial  District.  His  career  upon  the  bench 
was  characterized  by  honor  and  eflSciency.  His  searching 
investigations  gave  soundness  to  his  decisions.  His  prompt- 
ness and  dispatch,  attended  by  a  dignity  and  gravity  of 
•manner  rarely  found  in  one  of  his  age,  commanded  confi- 
dence and  respect,  and  he  had  the  reputation  of  being  a 
just,  impartial,  and  able  judge. 

In  18,55  he  resigned  the  judgeship  and  formed  a  copart- 


JOHN   HANCOCK.  423 

nership  with  Hon.  Charles  S.  West,  which  continued  until 
the  latter  was  elected  to  the  bench  of  the  Supreme  Court 
in  1883,  and  he  then  became  associated  in  practice  with  his 
present  partner,  General  N.  G.  Shelley.  In  conjunction 
with  these  gentlemen  respectively  he  has  been  engaged 
while  not  on  the  bench  or  in  Congress  in  nearly  all  the  im- 
portant land  cases  that  have  come  before  the  courts  in  his 
section  of  the  State.  He  is  thoroughly  familiar  with  the 
land  laws  of  Texas,  with  the  origin  and  nature  of  the 
various  tenures  by  which  the  lands  of  the  State  are  held, 
and  his  practice  in  these  cases,  especially,  has  been  attended 
with  remarkable  success.  While  he  is  a  man  of  fine  natural 
abilities  and  general  attainments,  his  success  as  a  lawyer  is 
largely  due  to  a  steady  and  almost  unremitting  attention  to 
the  business  entrusted  to  him.  It  has  been  his  rule  to  spend 
every  business  hour  in  either  his  office  or  the  court-room, 
and  it  is  said  of  him  that  during  the  thirty-eight  years  of 
his  residence  in  Austin  he  has  not  spent  that  many  hours 
on  the  streets  undevoted  to  the  requirements  of  his  busi- 
ness, and  that  during  all  that  time  he  has  never  failed  to 
keep  a  professional,  official  or  political  engagement. 

Some  of  the  most  important  cases  argued  by  Judge 
Hancock  are  Carter  v.  Carter,  which  is  a  leading  case  as 
to  the  admissibility  of  parol  testimony  to  show  that  "  a  deed 
or  bill  of  sale  absolute  on  its  face  is  a  mortgage,"  and  Han- 
cock V.  McKinney,  7  Texas,  384,  which  was  a  highly  im- 
portant case  at  the  time,  as  it  determined  the  consideration 
to  be  given  by  the  Texas  courts  to  conditional  titles  to  land 
emanating  from  the  preceding  government,  when  the  con- 
ditions had  not  been  performed  by  the  grantee,  and  to 
other  questions  relating  to  Mexican  titles.  The  court  re- 
jected his  views,  but  the  Constitution  of  1875  adopted,  in 
its  thirteenth  article,  the  policy  for  which  he  contended. 
These  cases  were  argued  by  him  before  his  election  to  the 
bench. 

While  judge  of  the  Second  Judicial  District  he  intro- 
duced several  important  rules,  which  greatly  promoted  the 
facility  of  the  court  in  the  dis])atch  of  business,  and  which 
have  been  followed  bv  his  successors.     One  of  which  was 


424  BENCH  AND  BAR  OF  TEXAS. 

that  practicing  lawyers  should  not  absent  themselves  from 
the  court-room  during  the  sitting  of  the  court  without  no- 
tifying the  sheriff  of  the  place  at  which  they  could  be 
found.  Upon  which  a  reasonable  time  would  be  given  for 
sending  for  them;  but  no  lawyer  would  be  called  as 
had  been  the  custom  and  the  cause  of  frequent  and  pro- 
longed delays.  The  other  rule  was  to  order  parties  con- 
victed and  fined  into  the  custody  of  the  sheriff  and  to  stand 
committed  until  the  fine  was  paid.  Previous  to  this 
parties  convicted  of  misdemeanors,  especially  gamblers, 
would  walk  out  of  court  in  defiance  of  the  law  and  regard- 
less of  the  penalty  imposed  by  the  judge.  In  addition  to 
this  he  informed  the  sheriff  that  his  custody  meant  confine- 
ment in  the  county  jail,  and  the  beneficial  effect  of  the 
rule  was  soon  obvious  upon  all  classes  of  society. 

One  of  the  most  important  and  interesting  questions 
argued  by  Judge  Hancock  after  his  return  to  the  bar  was 
the  habeas  corpus  case  of  Peebles  and  others  before  the 
Supreme  Court  of  Texas,  in  1864.  The  history  of  this  case 
is  interesting  as  it  presents  a  view  of  the  conflict  of  law 
and  public  sentiment  which  often  pervaded  whole  commun- 
ities in  those  unsettled  times.     It  is  as  follows:  — 

In  1863,  J.  D.  Baldwin,  a  lawyer  of  Houston,  wrote  and 
published  his  views  of  secession  in  a  pamphlet  entitled, 
"Common  Sense;"  in  which  he  arraigned  its  origin,  its 
purpose  and  the  manner  in  which  it  was  accomplished,  to- 
gether with  the  manner  in  which  the  war  was  being  con- 
ducted, and  its  ultimate  consequences. 

This  work  was  printed  by  a  German,  named  Zinke,  with 
whom  another  German  named  Hilderbrand  was  supposed  to 
be  associated  in  the  matter,  and  was  covertly  circulated. 
The  work  produced  feelings  of  indignation  and  bitterness 
against  the  author  and  all  who  were  supposed  to  be  accom- 
plices in  its  production  and  circulation.  Baldwin  was  upon 
terms  of  social  intimacy  with  Dr.  R.  E.  Peebles,  a  wealthy 
planter  on  the  Brazos  River,  and,  before  that  time,  a  man 
highly  respected  in  his  community,  though  a  staunch 
and  avowed  Union  man,  and  frequently  visited  his  resi- 
dence.    This  caused  the  complicity  of  Peebles  in  the  pub- 


JOHN   HANCOCK.  425 

lication  to  be  suspicioiied,  and  the  result  of  public 
sentiaient  was  that  a  military  order  was  issued  for  the 
arrest  of  Baldwin,  Peebles,  Zinke  and  Hilderbrand.  The 
prisoners,  after  having  been  confined  at  respective  places, 
were  taken  to  San  Antonio,  where  the  public  feeling  was  so 
exasperated  against  them  that  threats  were  made  against 
their  lives,  and  they  would  no  doubt  have  suffered  the 
utmost  violence  had  it  not  been  for  the  prompt  and  stern 
protection  afforded  them  by  Capt.  Thomas  E.  Sneed,  now 
a  prominent  lawyer  of  Austin,  who  was  in  command  of 
the  company  detailed  to  guard  them.  This  sentiment 
against  them  ran  so  high  that  the  lawyers  of  San  Antonio, 
Houston  and  other  places,  either  through  condemnation,  or 
fear  of  public  disapproval,  declined  to  take  any  steps  in 
behalf  of  the  prisoners,  notwithstanding  that  their  friends, 
especially  the  family  of  Peebles,  had  made  eveiy  effort  ajid 
offer  of  inducement  to  procure  counsel  for  them. 

Under  these  circumstances  Mrs.  Peebles  repaired  to  Aus- 
tin and  personally  sought  the  services  of  Judge  Hancock 
in  an  elFort  to  save,  as  she  supposed,  the  life  of  her  hus- 
band, and  without  fee  or  reward  he  undertook  their  cause, 
and  obtained  a  writ  of  habeas  corpus  from  the  Supreme 
Court,  upon  which  the  prisoners  wea'e  tried  and  liberated. 
This  result,  effected  in  the  midst  of  popular  excitement, 
he  achieved  by  a  calm  and  deliberate  discussion  of  the 
principles  of  constitutional  law,  the  inalienable  rights  of 
the  citizen,  and  the  obligations  of  those  clothed  with 
judicial  authority  to  confoim  their  adjudications  to  the 
written  law  of  the  land  and  to  the  dictates  of  human  rights. 
He  boldly  denounced  the  assumption  of  arbitrary  power  by 
the  military  authorities,  and  his  victory  was  a  vindication  of 
the  inalienable  rights  of  an  American  citizen. 

In  politics.  Judge  Hancock  has  always  been  a  Democrat 
of  the  Jacksonian  school ;  he  was  opposed  to  the  doctrines 
of  nullification  and  secession,  and  in  1860  was  elected  to  the 
Legislature  on  the  Union  ticket;  but  in  1861,  declined  to 
take  the  required  oath  to  the  Confederate  government,  and 
was  deprived  of  his  seat.  During  the  war  he  maintained  a 
neutral    attitude,  and  divided   his   attention    between    the 


426  BENCH  AND  BAR  OF  TEXAS. 

practice  of  his  profession  and  the  supervision  of  his  stock 
farm  until  he  was  threatened  in  1864  with  compulsory  mil- 
itary service  in  a  cause,  the  policy  and  character  of  which 
were  against  his  convictions.  He  then  repaired  to  Mexico, 
and  having  resided  several  months  in  that  country,  he  made 
his  way  to  the  United  States  and  remained  at  the  North 
until  the  close  of  the  war. 

At  the  termination  of  hostilities,  Judge  Hancock  returned 
to  Texas  and  devoted  his  efforts  to  the  amelioration  of  the 
condition  of  the  people,  and  had  his  advice  at  that  period 
been  heeded,  and  the  position  he  assumed  been  adopted,  it 
would  no  doubt  have  greatly  paralyzed  the  revengeful  de- 
signs of  the  dominant  party  at  the  North,  which  were  pro- 
moted by  the  reluctance  of  the  Southern  people  to  accept 
the  full  results  of  the  issue.  He  was  a  member  of  the  State 
Convention  of  1866,  and  used  his  best  efforts  in  the  interest 
of  conciliation  and  the  immediate  restoration  of  harmoni- 
ous relations  betw^een  the  State  and  the  Federal  government 
as  the  only  means  of  restoring  the  peace  and  prosperity  of 
the  people.  Time,  the  great  monitor  of  events,  has  vindi- 
cated his  sagacity  and  established  the  correctness  of  his 
views,  and  he  is  considered  a  wise  counselor  both  as  a  law- 
yer and  statesman. 

In  1870  he  was  tendered  the  nomination  for  Congress 
by  a  convention  held  at  Seguin,  but  he  declined  in  obedi- 
ence to  the  demands  of  a  large  law  practice,  which  he  was 
not  disposed  to  exchange  for  political  honors;  but  in  1871 
he  yielded  to  the  popular  wishes  and  accepted  the  nomina- 
tion as  the  Democratic  candidate.  He  was  easily  elected, 
and  served  by  re-election  until  1877,  when,  having  been 
defeated  for  renomination,  he  resumed  the  practice  of  law. 
His  services  in  Congress  had  been  faithful  and  eminent. 
His  industrious  habits,  his  business  capacity,  his  practical 
genius,  his  kindness  of  heart,  suavity  of  manners,  and  pol- 
ished urbanity,  crowned  with  conspicuous  talents,  gave  him 
great  influence,  and  he  pursued  with  a  steady  purpose  the 
accomplishment  of  that  which  he  conceived  to  be  the  best 
interest  of  his  constituenc}^  his  State  and  the  country.  So 
marked  had  been  his  efficiency,  and   so  able  and  beneficent 


JOHN    HANCOCK.  427 

his  career,  that  his  services  were  again  demanded,  and  in 
1882,  he  was  elected  to  the  Forty-eighth  Congress.  lu  1884 
he  declined  re-election,  and  after  participating  in  the  pro_ 
ceedings  preliminary  to  the  glorious  inauguration  of  Presi- 
dent Cleveland,  he  once  more  returned  to  the  practice  of 
his  profession  at  Austin  where  he  is  now  engaged  in  a  large 
business. 

The  brilliant  career  of  Jud^e  Hancock  is  due  to  his  force 
of  character  and  the  qualities  already  mentioned.  He  pos- 
sesses no  superior  natural  gifts  as  an  orator  and  has  never 
cultivated  the  artificial  embellishments  of  speech  or  the 
mere  flowers  of  oratory.  He  disdains  all  its  "flower 
decked  plats  and  blooming  parterres  ;  "  but,  with  his  pur- 
pose well  defined  and  his  object  constantly  fixed  in  his  view, 
his  acute  perception  and  cultivated  judgment  marshal 
every  available  point  in  the  line  of  his  argument,  while  a 
strong,  powerful  logic  presents  the  merits  of  his  case  to  the 
comprehension  of  common  sense,  and  seizes  upon  convic- 
tion with  the  grasp  of  reason. 

"  The  fluency  of  speech  in  many  men  and  most  women," 
says  Jonathan  Swift,  "  is  owing  to  a  scarcity  of  matter, 
and  a  scarcity  of  words  ;  for  whoever  is  master  of  lan- 
guage, and  hath  a  mind  full  of  ideas,  will  be  apt  in  speak- 
ing to  hesitate  upon  the  choice  of  both  ;  whereas  fluent 
speakers  often  have  but  one  set  of  ideas  and  one  set  of 
words  to  clothe  them  in  ;  and  those  are  always  ready  at  the 
mouth;  so  people  come  faster  out  of  the  church  when  it  is 
almost  empty,  than  when  there  is  a  crowd  at  the  door." 

It  is  true  that  there  are  prominent  exceptions  to  this  rule 
as  in  the  instances  of  Daniel  Webster,  Henry  Clay  and 
Sergeant  S.  Prentiss ;  but  these  exceptions  have  their  origin 
in  pre-eminent  genius  and,  therefore,  only  affirm  the 
aphorism. 

Judge  Hancock  is  a  man  of  great  energy  and  integrity 
of  purpose,  and  views  with  impatience  and  intolerance 
every  effort  of  evasion  or  undue  advantage,  and  has  no 
complacency  with  mere  trifling  with  matters  of  importance. 
His  last  debate  in  the  House  of  Representatives  was  upon 
the  Fortification  Bill,  reported  from  his  committee  on  the 


428  BENCH  AND  BAR  OF  TEXAS. 

1st  of  March,  1885.  For  some  reason  the  calibers  of  the 
guns  used  in  the  United  States  navy  were  assized  by  odd 
numbers  while  those  used  in  the  army  are  varied  by  even 
numbers.  Judge  Hancock  contended  that  the  calibers  of 
all  should  be  uniform,  so  that  the  same  ammunition  could 
be  used  both  on  sea  and  on  land,  and  be  interchangeable  in 
the  event  of  a  deficiency  in  either  branch  of  the  service, 
and  so  that  army  officers  could  understand  the  use  of  navy 
guns  and  naval  officers  the  use  of  army  ordnance  without 
special  training. 

Some  of  the  members  during  the  debate  on  this  bill  in 
the  conmiittee  of  the  whole  availed  themselves  of  their  five 
minutes'  time  to  discuss  the  question  of  silver  coinage.  To 
which  Judge  Hancock  sternly  objected,  saying  that  it  was 
not  proposed  by  the  bill  to  fabricate  cannon  and  build 
fortifications  out  of  silver. 

In  his  speech  on  "  counting  the  electoral  votes,"  delivered 
in  the  House  of  Representives  on  the  25th  of  January, 
1877,  he  said  :  — 

"  Nothing  is  more  hateful  than  a  treacherous  duplicity  and 
a  pretense  of  fairness  merely  delusory  and  intended  to  de- 
fraud. Everything  which  seems  to  be  fair  in  this  act  of 
legislation  is  merely  specious,  insincere,  and  destructive. 

"  The  board  is  to  be  at  first  composed  of  persons  from  all 
political  parties,  but  it  is  not  provided  that  it  shall  con- 
tinue so.  A  vacancy  occurring  should  be  filled  with  one 
from  the  same  political  party  as  the  last  tenant,  but  it  is 
not  promised  that  it  shall  be,  and  those  who  are  to  elect 
can  not  be  made  to  elect  at  all.  A  person  interested  as  a 
candidate  is  to  be  allowed  a  hearing,  but  there  is  no  promise 
that  the  hearing:  shall  be  full  or  fair.  The  returning  officers 
are  to  hear  testimony,  but  it  is  not  provided  that  they  shall 
do  this  publicly,  or  that  there  may  be  cross-examination  or 
opportunity  for  rebuttal,  or  previous  notice  to  any  one  in 
all  the  world.  Their  conclusions  are  to  be  considered  prima 
facie  correct,  and  may  be  gone  behind  in  a  formal  proceed- 
ing to  contest,  but  their  findino-s  as  to  the  material  facts  are 
final  and  it  can  not  be  shown  that  they  ought  not  to  have 
been  convinced.     To  sum  all  up  in  a  word,  they  can  truly 


JOHN    HANCOCK.  429 

plead  they  had  ample  warrant  in  the  letter  of  the  law  for 
doing  all  they  have  done  and  for  abundant  sharp  practice 
besides.  There  is  no  limit  to  the  amount  of  villainy  which 
the  law  makes  possible  and  permits. 

"  It  has  been  said  to  be  '  the  common  method  of  all  sjov- 
ernments  now  received  in  the  world  to  allow  almost  every- 
thing that  tends  to  the  corruption  of  manners,  and  then  to 
restrain  those  corruptions;  a  work,' it  is  added,  '  far  be- 
yond the  power  of  the  longest  experience  and  greatest 
prudence.'  The  act  in  question  is  a  resort  to  one  of  those 
pernicious  practices  that  tend  to  destroy  public  liberty.  It 
proposes  to  legalize  the  ill-designs  of  inveterate  knaves, 
never  boldly  attempted  to  be  carried  into  effect  by  legisla- 
tion in  a  republic  until  it  is  declining  to  its  fall.  It  was 
most  trul}'  said  by  Fletcher  that '  a  government  is  not  only 
tyranny  when  tyrannically  exercised,  but  also  when  there 
is  no  sufficient  caution  in  the  constitution  that  it  may  not  be 
exercised  tyrannically.'  'AH  governments,'  he  said, 
'  are  tyrannical  which  have  not  in  their  construction  a  suf- 
ficient security  against  arbitrary  power.' 

"  This  act  is  tyrannical  because  it  intrusts  arbitrary  power 
to  five  men  or  a  less  number,  to  be  exercised  without  power 
of  control  or  security  against  abuse  in  any  quarter.  It 
puts  it  in  their  power  arbitrarily  to  annul  the  votes  of  whole 
parishes  and  cities,  and  so  makes  the  right  of  suffrage  of 
all  the  citizens  depend  upon  their  favor,  their  caprice,  their 
interest,  their  irresponsible  will.  It  is,  therefore,  not  only 
violative  of  the  rights  of  men  ;  it  not  only  makes  the  elec- 
tive franchise  and  title  to  office,  both  of  which  are  property, 
exist  or  disappear  at  the  pleasure  of  four  or  five  men  having 
perpetual  succession,  but  it  makes  the  government  of  a 
State  a  tyranny,  and  not  republican  even  in  form." 

Perhaps  the  most  important  and  effective  speech  made  by 
Judge  Hancock  in  Congress  was  that  on  Indian  affairs  de- 
livered in  the  Forty-third  Congress.  By  this  speech  he  was 
enabled  to  change  the  policy  of  the  government  towards  the 
Indians  so  far  as  to  prohibit  the  issuing  of  rations  to  them 
for  more  than  seven  days  at  a  time,  and  to  cause  the  order 
that  they  would  not  be  permitted  to  leave  the   reservations 


430  BENCH  AND  BAR  OF  TEXAS. 

unless  accompanied  by  an  officer  of  the  United  States. 
These  regulations  have  prevented  any  raid  from  being 
made  into  Texas  since  that  time,  except  from  Mexico. 

In  1876  he  was  assailed  by  Col.  D.  C.  Giddings,  the 
Democratic  nominee  for  Congress,  for  having  failed  as  a 
Southern  Union  Democrat  to  keep  his  promise  to  defend 
the  Southern  people  against  the  violent  attacks  which  were 
then  being  made  by  Radical  partisans  in  Congress  ;  and  it 
was  charged  by  Col.  George  Flournoy,  an  orator  of  Gal- 
veston, that  he  had  been  elected  to  Congress  by  the  Texan 
Democracy  for  the  sole  purpose  of  mollifying  the  asperity 
of  the  North  towards  the  people  of  the  South,  and  that 
Galveston  Democrats  rejected  him  because  he  did  not  de- 
fend them  when  Blaine,  Morton  and  others  were  heaping 
calumny  and  slander  and  falsehood  upon  them  on  the  floor 
of  Congress. 

To  these  charges  he  published  an  elaborate  reply  and 
refutation  which  he  concluded  with  the  followino;  observa- 
tions :  — 

"  Why  should  I  have  been  brought  into  this  Congressional 
contest?  My  merits  or  demerits  could  neither  add  to  nor 
take  from  those  of  Col.  Jones  or  Col.  Giddings,  and 
whether  I  may  have  at  all  times  done  the  wisest  and  best 
thing,  or  sometimes  erred  in  judgment,  as  T  often  do,  being 
but  a  frail,  fallible  mortal,  almost  every  day  looking  back 
to  find  some  error  of  yesterday  I  would  correct,  could  in  no 
way  aid  the  people  to  a  correct  judgment  in  deciding  be- 
tween these  aspirants.  It  was  known  I  had  been  invited 
and  gone  to  a  remote  part  of  the  State,  and  taken  no  part 
in  the  contest,  wished  to  take  none  further  than  vote  for 
Col.  Giddings,  as  I  did,  he  being  the  nominee  of  the  con- 
vention before  which  friends  had  placed  my  name,  which 
in  honor  bound  me,  as  well  as  duty  to  my  friends,  to  abide 
by  the  action  of  the  convention  ;  they  both  claimed  to  be, 
and,  I  doubt  not,  have  ever  been.  Democrats,  and  it  was  the 
people's  right  to  choose  between  them.  The  action  of  the 
convention  was  only  persuasive,  not  binding  on  them.  On 
principle,  as  also  by  usage,  they  are,  and  should  be,  left 
free  to  vote  as,  in   their  judgment,  will   best  subserve  the 


JOHN   HANCOCK.  431 

public  welfare.  For  me  to  have  sought  to  inflence  their 
selection,  tis  between  two  Democrats,  as  to  which  of  them 
should  be  my  successor,  would  have  been  not  free  from 
criticism,  besides  both  professed  to  be  my  warm  personal 
and  political  friends.  My  friends  and  staunch  supporters 
brought  Colonel  Giddings's  name  before  the  convention, 
supported  and  secured  his  nomination.  The  same  men 
canvassed  for  him,  and  elected  him,  and  he,  till  he  reached 
Galveston,  wherever  he  spoke  of  me,  employed  terms  of 
eulogy  and  approval;  but  of  those  who  conspired  for  my 
defeat,  at  all  hazards,  here  he  found  himself  among  the 
chief  priests,  and  then  Judas  said, '  Hail  Master,  and  kissed 
him.'  It  seems,  too,  it  had  become  popular  with  some  of 
the  would-be  leaders  in  Galveston  to  abuse  and  say  spiteful 
things  of  me.  I  have  not  been  able  to  do  a  tithe  of  what  I 
wished  to  advance  the  growth  and  prosperity  of  that  city. 
The  little  I  have  done  ought  not  to  excite  the  enmity  of 
that  class  of  persons  who  are  ever  ready  to  become  the 
enemy  of  those  who  render  them  favors  and  benefits,  to 
show  how  independent  they  are.  I  remember,  too,  that 
among  the  most  gloomy  and  foreboding  features  of  our 
political  history  are  those  instances  where  artful,  designing 
and  ambitious  demagogues  conspired  to  move  the  public 
mind,  by  falsehood  and  misrepresentation,  to  passion  and 
prejudice,  till  the  people  displaced,  for  a  time,  from  their 
confidence,  men  deserving  better  of  them  than  I  have  the 
abilitj'  to  do.  I  have  made  no  murmur  of  complaint  and 
feel  I  ought  to  have  been  allowed  to  remain  silent.  If  my 
defeat  does  not  reflect  the  wish  of  the  people  of  this 
district,  in  their  own  good  time  they  will  rebuke  those  who 
refused  to  reflect  their  views.  I  have  not  thrust  myself 
upon  the  people,  at  any  time,  and  have  only  held  ofl5ce  and 
served  them  when  they  have  manifested  a  desire  to  have  me 
do  so  ;  but  it  seems  determined,  the  people  shall  not  mani- 
fest such  wish  if  any  manner  of  falsehood  and  misrepre- 
sentations can  prevent. 

"  In  Congress  I  have  pursued  that  course,  and  observed, 
in  my  intercourse  with  others,  that  demeanor  and  deportment 
towards  them  which  I  believed  best,  to  enable  me  to  accom- 


432  BENCH  AND  BAR  OF  TEXAS. 

plish  results  deemed  beneficial  to  those  I  had  the  honor  to 
represent  and  all  the  people  of  Texas.  I  have  not  been 
able  to  accomplish  all,  or  near  as  much  as  I  could  have 
wished,  for  their  benefit.  How  far  I  have  succeeded  is 
shown  by  the  record  and  known  of  many  men.  I  have  not 
paraded  my  humble  achievements  for  the  applause  or  the 
gratitude  of  the  people,  or  for  comparison  with  results 
effected  by  my  colleagues  ;  each  has  ever  done,  most  cer- 
tainly, all  in  his  power ;  far  be  it  from  me  to  seek  to  de- 
prive any  of  the  merit  of  his  conceptions,  laborer  influence. 
They  are  all  able,  eflScient  and  faithful,  and  deserve,  as  they 
have  received,  well  of  their  constituents. 

"  Had  the  people  who  had  honored  me  by  electing  me  their 
representative,  or  of  Texas  or  the  South,  been  traduced  or 
reviled,  a  failure  to  have  properly  repelled  the  slander  or 
defended  them,  would  have  been  a  proper  subject  of  criti- 
cism ;  but  assaults  made  upon  individuals  should  be  con- 
sidered and  treated  responsive  to  the  purpose  aimed  to  be 
accom[)lished  by  the  assailant  and  the  wrong  or  injustice  to 
the  individual  assailed  with  reference  to  the  facts  and  con- 
ditions of  the  subject-matter  about  the  conduct  of  which  the 
assault  is  made.  The  purpose  was  a  common  expedient 
resorted  to  by  the  demagogues,  both  North  and  South,  as 
everywhere  else,  when  occasion  requires,  to  influence  the 
passions  and  rekindle  the  prejudices  of  the  people  by  revi- 
talizing dead  and  past  issues,  as  questions  pending  before 
and  to  be  decided  on  by  them  in  a  pending  political  contest. 
The  alleged  cruel  treatment  and  great  suffering  of  prison- 
ers, in  consequence  of  the  brutal  and  tyrannical  conduct  of 
the  war  under  and  by  authority  of  Mr.  Jefferson  Davis, 
were  the  subjects  aptly  selected  to  be  presented  to,  discussed 
before,  and  passed  upon  by  the  people  in  electing  a  Presi- 
dent of  the  United  States.  Questions  in  no  way  connected 
with  the  different  theories  and  measures  of  governmental 
policy  maintained  by  the  contending  parties,  or  that  could, 
in  any  degree,  aid  the  people  to  decide  on  the  respective 
merits  of  opposing  candidates  ;  but  well  calculated  to  effect 
the  object  desired  of  diverting  the  public  mind  from  the 
real  issues  involved  in  the  election,  by  reviving  the  preju- 


JOHN    HANCOCK.  433 

dices  and  passions  of  the  people  and  inducing  them  to  again 
pass  on  the  merits  of  secession  and  the  war,  rather  than  on 
the  inefficiency,  malpractices  and  corruptions  of  the  admin- 
istration and  party  in  power.  No  doubt,  had  it  been  per- 
mitted, the  party  bringing  forward  these  false  and  dead 
issues  of  secession  and  the  war,  would  have  kept  up  their 
discussion  through  the  session  of  Congress  and  till  the  ter- 
mination of  the  presidential  contest.  Considered  in  a 
political  aspect,  to  have  protracted  discussion,  the  Demo- 
cratic party  could  have  gained  nothing  and  might  have  lost 
much.  Reo-arded  in  that  lio-ht,  enouo;h  had  been  said,  and 
from  the  most  effective  quarter,  when  Mr.  Cox  and  Mr. 
Kelley  had  spoken.  How  far  Mr.  Davis  might  be  affected 
by  the  assault  on  him  was  proper  to  be  determined  by  his 
personal  friends  and  past  political  associates.  They  deemed 
it  a  duty  to  defend  and  vindicate  his  name,  though  his 
whole  course  had  already  become  history,  not  to  be  changed 
by  what  politicians  might  think  or  say  of  him  for  partisan 
purposes.  So  far  as  secession  and  those  engaged  in  the 
effort  to  accomplish  it,  or  still  keeping  it  up  may  have  been 
brought  in  by  implication,  though  I  do  not  conceive  that 
either  was,  even  by  implication,  reached  by  the  assault  on 
Mr.  Davis,  I  could  not  have  been  a  proper  advocate  for 
either. 

"  It  is  well  known  I  opposed  secession.  I  did  so  upon 
my  convictions  that  it  was  wrong — very  wrong — would 
bring  war,  desolation  and  disaster  upon  the  country,  ruin 
and  death  to  thousands,  whatever  the  result,  and  success 
would  eventuate  in  the  overthrow  of  republican  government 
and  the  establishment  of  a  monarchy.  Others  favored  the 
measure  upon  their  convictions,  equally  sincere,  proven  by 
the  highest  testimony  man  could  offer,  the  yielding  up  of 
life  itself,  that  none  of  my  apprehended  evils  would  follow 
and  that  great  ultimate  good  would  be  accomplished.  A 
great  problem  in  the  science  of  human  government  was  in- 
volved, upon  which  the  wisest  men  might  honestly  differ. 
But  on  that  account,  if  good  and  truly  patriotic,  they  would 
retain  no  personal  enmities,  when  the  issue  should  be  settled 
28 


434  BENCH  AND  BAR  OF  TEXAS. 

and  passed  into  history.  When  the  war  was  over,  I  knew 
no  feeling  of  enmity  or  unkindness  towards  any  one  on 
account  of  difference  on  the  question  of  secession.  My 
law  partner,  for  over  a  score  of  years,  and  I  returned  to 
our  old  office  near  the  same  time,  he  from  the  Southern 
army,  in  which  he  had  served  as  a  soldier,  and  I  from  a 
section  of  country  held  by  the  Union  army.  We  resumed 
our  places  at  our  accustomed  desks  and  took  up  business 
where  we  left  off  without,  I  am  sure,  a  recognizable  change 
in  our  mutual  feelings  of  friendship,  respect  and  confidence, 
as  they  were  before  secession  began.  I  so  felt  and  acted 
towards  all  who  disagreed  with  me  on  that  momentous 
question.  That  feeling  and  conduct  have  been  reciprocated 
by  many  zealous  secessionists,  who  faithfully  performed 
every  duty  devolved  on  them  by  the  attempted  revolution. 
But  when  the  contest  was  ended,  they  returned  to  their  alle- 
giance and  duty  as  became  honest  men  and  patriots,  and  I 
am  proud  to  be  able  to  claim  many  such  among  my  most 
trusted  friends  and  supporters.  I  have  ever  been  as  readj- 
to  trust  and  to  serve  them  as  if  we  had  never  difi'ered.  It 
has  been  my  pleasure,  as  I  believe  it  my  duty,  to  do 
all  in  my  power  to  alleviate  the  people  in  their  distress,  and 
to  ameliorate  their  condition  as  left  by  the  war,  to  shield 
and  defend  them  from  what  I  deemed  an  unwisely  rigorous 
policy,  to  rehabilitate  them  with  all  the  political  rights,  that 
by  prudent  and  vigilant  use  of  them  they  might  secure  to 
themselves  good  government  and  renewed  prosperity.  No 
one  can  truthfully  say  I  have  not  freely  used  every  influence 
my  position  and  humble  ability  gave  me  for  the  accomplish- 
ment of  these  results.  But  I  was  as  pronouncedly  and 
unqualifiedly  opposed  to  secession  as  any  man  could  have 
been  in  favor  of  it.  No  reasonable  man  would  expect  me 
to  become  its  advocate  or  defender  in  Congress,  and  the 
defense  of  the  leaders,  arraigned  for  the  mode  of  conducting 
the  war,  manifestly  might  be  appropriately  left  to  members 
who  co-operated  with  them  in  carrying  it  on  —  were  better 
prepared  by  greater  familiarity  with  the  facts,  and  inter- 
ested in  vindicating  the  conduct  of  their  leaders — than  be 


JOHN   HANCOCK.  435 

required  of  members  who  from  the  first  disapproved  seces- 
sion, and  would  not  likely  have  the  same  familiarity  with 
the  transactions  complained  of. 

"  Though  I  have  been  as  well  abused  and  as  wantonly  mis- 
represented, and  from  as  malicious  and  selfish  motives,  as 
any  man  in  the  State,  I  have  not  before  this  deemed  it  nec- 
essary to  make  any  defense.  But,  *on  this  occasion,  the 
attacks  are  so  extraordinarily  monstrous  ;n  their  moral  de- 
formities when  their  accuracy  is  tested  by  the  public  records 
of  the  country,  that  I  felt  it  due  as  well  to  the  people  as  to 
myself  that  they  should  know  from  these  authentic  sources, 
the  facts.  For  in  my  retirement,  now  soon  to  occur, 
from  all  political  position,  I  have  the  satisfaction  of  know- 
ing that  I  never  have  been  afraid  to  tell  the  people  the 
truth,  and  then  abide  their  ultimate  judgment." 

In  social  life,  Judge  Hancock  is  a  man  of  exceedingly 
popular  traits  of  character.  He  is  devoted  and  constant  in 
his  personal  attachments,  and  has  many  warm  friends 
throughout  the  State  who  would  sustain  him  for  any  posi- 
tion of  public  trust,  and  would  have  been  glad  to  have  seen 
him  occupy  a  place  in  Mr.  Cleveland's  Cabinet,  as  one  who 
would  have  possessed  the  confidence  of  the  North  and  would 
have  been  true  to  the  interest  of  the  South.  But  in  his  re- 
tirement from  long  public  service  he  no  doubt  enjoys  the 
sweetness  of  that  repose  which  follows  the  conscientious 
performance  of  honestly  conceived  duty. 

He  was  married  in  November,  1855,  to  Miss  Sue  E. 
Richardson,  who  is  a  native  Texan,  and  the  granddaughter 
of  Hon.  Asa.  Brigham,  first  secretary  of  the  treasury  of  the 
Texas  Eepublic.  This  admirable  lady  has  woven  into  his 
busy  life  every  charm  of  domestic  felicity. 


4oO  BENCH  AND  BAU  OF  TEXAS. 


JOHN  SAYLES. 


This  eminent  lawyer  and  legal  writer  is  a  native  of  New 
York  and  was  born  in  Vernon,  Oneida  County,  on  the  9th 
of  March,  1825.  His  father,  an  eminent  physician,  and  a 
native  of  Ehode  Island,  was  of  English  descent  and 
belonged  to  one  of  the  oldest  families  of  the  country.  His 
ancestor  came  to  America  in  the  ship  with  Roger  Williams, 
and  afterwards  married  his  daughter.  The  mother  of  John 
Sayles  was  the  grand-daughterof  John  Sergeant,  a  celebrated 
divine  and  missionary  to  the  Stockbridge  Indians  of  Massa- 
chusetts, and  was  connected  with  the  families  of  Edwards, 
Dwight  and  Sedgwick,  which  have  produced  many  members 
distinguished  for  their  scholarly  learning  and  ability. 

The  early  advantages  of  the  subject  of  this  sketch  were 
good.  He  was  educated  at  an  academy  in  his  native  town 
and  at  Hamilton  College,  New  York.  His  father  was  a 
man  of  limited  means,  and  in  his  fifteenth  year  young 
Sayles  taught  school  to  help  to  defray  the  expenses  of  his 
collesiate  course.  On  leavino;  colleo;e  in  1844,  he  found  his 
fate  depending  entirely  on  his  own  resources  ;  but  buoyed 
by  his  genius  and  ambition,  and  supported  by  the  staff  of  a 
virtuous  resolution,  he  stepped  boldly  upon  the  journey  of 
independent  life  ;  and  while  no  glittering  prospects  at  that 
time  charmed  his  view,  his  destiny  was  haloed  with  the 
devout  benizons  of  a  father's  blessing  and  the  hallowed 
guerdon  of  a  mother's  prayers.  These  were  his  only  patri- 
mony. With  these  he  went  forth,  and  his  energ}'  and 
determination  soon  cleared  away  the  untoward  circum- 
stances that  clustered  in  his  pathway. 

Soon  after  having  completed  his  course  in  Hamilton 
College,  seeking  for  a  propitious  field  for  his  labors,  he 
turned  his  eyes  towards  the  South,  as  if  impelled  by  those 


JOHN    SAYLES.  437 

warm  and  generous  feelino-s  which  sou«jht  and  found  a  con- 
geniality  among  its  hospitable  people,  and  in  1844  went  to 
Georgia  and  engaged  in  teaching  there  one  year.  In  1845 
he  removed  to  Brenham,  Texas,  where  he  taught  school  a 
year  and  a  half.  He  studied  law  while  engaged  in  teach- 
ing and  was  admitted  to  the  bar  at  Brenham  in  1846,  where 
he  has  since  continued  to  reside  and  practice. 

He  was  a  member  of  the  Fifth  Legislature  in  1853-55, 
and  was  chairman  of  the  sub-committee  to  which  was 
referred  the  criminal  codes  reported  to  that  Legislature. 
With  this  exception  he  has  never  permitted  the  attractions 
of  political  office  to  allure  him  from  the  jealous  duties  of 
his  profession,  which  he  loves  with  the  fondness  of  a 
devotee. 

In  1849  he  married  Miss  Mary  Gillespie,  a  most  excellent 
and  accomplished  lady,  the  daughter  of  Barry  Gillespie,  a 
prominent  law3^er  of  Washington  County,  and  soon  after- 
wards formed  a  copartnership  with  his  father-in-law,  which 
continued  until  the  death  of  the  latter  in  1851.  After 
which  he  was  associated  four  or  five  years  with  W.  T. 
McFarland,  and  in  1857,  the  firm  of  Sayles  &  Bussett  was 
formed,  and  continues  to  exist. 

He  was  early  imbued  with  the  sentiments  and  principles 
of  the  people  with  whom  he  had  cast  his  lot,  and  became 
thoroughl}^  Southern  in  his  views.  When  the  Civil  War 
began  in  1861,  he  was  made  brigadier-general  of  the  Texas 
militia  and  was  subsequently  adjutant-general  on  the  staff 
of  General  Magruder  in  the  Confederate  service.  - 

As  a  lawyer  General  Sayles  is  brilliant  and  profound. 
The  faculties  of  his  mind  are  quick,  energetic  and  grasping, 
and  are  alwaj^s  at  his  command.  He  has  mastered  every 
principal  feature  of  law,  and  his  familiarity  with  funda- 
mental principles,  the  philosophy  of  legal  science  and  the 
decisions  of  the  courts,  furnishes  him  with  a  store  of  prece- 
dent from  which  his  genius  never  fails  to  model  an  apt 
analogy.  He  ig  quick  to  perceive  the  substance  and  char- 
acter of  a  proposition,  and  his  powers  of  analj^sis  readily 
penetrate  the  most  complex  questions  of  law  tiud  fact.  His 
cases  are  carefully  and  thoroughly  prepared,  and  he  is  thus 


438  BENCH  AND  BAR  OF  TEXAS. 

prepared  not  only  to  avail  himself  fully  of  the  merits  of  his 
own  side  of  the  question,  but  to  anticipate  the  points  made 
by  his  adversary.  He  embodies  his  thoughts  with  the  in- 
terest of  his  clients  and  clings  to  their  cause  with  the  fidelity 
of  a  zealot. 

His  arguments  are  always  logical  and  closely  woven,  and 
the  presentation  of  his  cases  clear,  forcible  and  convincing. 
His  opinion,  as  special  judge,  in  The  State  v.  Delesde- 
nier,  7  Texas,  95,  is  an  exemplification  of  eminent  judicial 
qualities ;  and  his  elaborate  argument  in  Hancock  v.  Mc- 
Kinney,  7  Texas,  384,  and  in  Fowler  et  al.  v.  Stoneum, 
11  Texas,  478,  in  the  former  of  which  he  discussed  the 
character  of  concessions  and  the  difference  between  perfect 
and  imperfect  titles,  and  in  the  latter  the  question  of 
fraudulent  conveyances,  are  strikingly  illustrative  of  his 
qualities  as  an  advocate. 

While  Gen.  Sayles  has  given  to  his  profession  all  that 
allegiance  which  Lord  Eldon  says  it  demands,  his  knowl- 
edge of  law,  combined  with  his  fondness  for  its  philoso- 
phy and  literature,  the  energy  and  business  qualifications 
which  abetted  and  developed  his  talents,  led  him  into  the 
paths  of  legal  tuition  and  authorship.  In  1880  he  was 
one  of  the  law  faculty  of  Baylor  Universit}'',  near  Bren- 
ham;  and  his  law  works  are  of  great  merit  and  value. 
These  are  well  known  to  the  profession,  and  are  en- 
titled :  — 

"  A  Treatise  on  the  Practice  in  the  District  and  Su- 
preme Courts  of  Texas."  First  edition,  1858;  second 
edition,  1873  ;  third  edition,  1882. 

"  Treaties  on  the  Civil  Jurisdiction  of  Justices  of  the 
Peace  in  the  State  of  Texas."  First  edition,  1867; 
second  edition,   1877  ;  third  edition,   1882. 

"  Treaties  on  the  Principles  of  Pleading  in  Civil  Ac- 
tions in  the  Courts  of  Texas."     1872. 

"  The  Probate  Laws  of  Texas."     1871. 

'«  Constitution  of  Texas,  with  Notes."  First  edition, 
1872;  second  edition,  1884. 

"  Laws  of  Business  and  Form  Book."     1872. 

*'  Notes  on  Texas  Reports."     1874. 


JOHN    SAYLES.  439 

General  Sayles  is  also  a  bright  and  devoted  Mason,  and 
in  1852  was  Grand  Master  of  the  Grand  Lodge  of  Texas,  and 
has  prepared  a  work  entitled  "Texas  Masonic  Jurispru- 
dence," which  has  passed  through  two  editions  ;  the  first  in 
1879,  and  the  second  in  1882. 

These  works  are  of  the  greatest  utility.  They  are  in 
general  use  throughout  the  State,  and  are  considered  the 
standard  authority  upon  the  various  subjects  of  which  they 
treat.  He  is  personally  a  great  favorite  with  the  courts  and 
the  bar  of  the  State.  His  frank,  open  and  amiable  charac- 
ter, his  brilliant  talents  and  legal  accomplishments,  render 
him  an  ornament  to  his  profession,  and  he  is  esteemed  and 
loved  by  his  neighbors  and  frienda. 


440  B£2!iCH  AND   £AK   OF   TEXAS. 


Nathan  G.  Shelley. 


Nathan  George  Shelley  was  born  in  Hawkins  County, 
Tennessee,  on  the  20th  of  February,  1825.  His  father  was 
a  brick  mason,  and,  in  search  of  labor,  moved  his  family  to 
Talladega  County,  Alabama,  while  Nathan  was  a  boy. 

The  educational  advantages  of  N.  G.  Shelley,  were  due 
to  his  own  exertions  and  were  couiSned  to  such  opportuni- 
ties as  intervened  while  laboring  with  his  father  as  a  brick 
mason.  His  time  thus  alternated  between  mental  and 
physical  labor  until  he  reached  the  age  of  sixteen  years, 
when  having  saved  some  means  allowed  him  for  his  labor, 
he  entered  Emory  and  Henry  College,  in  Virginia,  in  1841, 
and  remained  there  one  year,  when  it  became  necessary 
for  him  to  return  to  his  home  and  resume  the  pursuit  of 
his  trade  to  relieve  the  necessities  of  his  family  occasioned 
by  the  financial  embarrassment  of  his  father.  He  immedi- 
ately took  charge  of  his  father's  business,  and  while  thus 
shouldering  the  responsibilities  of  the  family  he  began  the 
study  of  law  under  the  tuition  of  Messrs.  Chilton  &  Rice, 
both  of  whom  have  since  that  time  held  the  office  of  chief 
justice  of  the  State.  But  in  1846  he  imbibed  the  patriotic 
spirit  excited  by  the  Mexican  war,  and  having  heard  of  the 
battles  of  Palo  Alto  and  Resaca  de  le  Palma,  he  left  his 
studies  and  enlisted  for  the  war  as  a  private  soldier  in  a 
company  organized  and  commanded  by  his  uncle.  Captain 
Jacob  D.  Shelley,  and  served  the  time  for  which  he  had 
enlisted. 

At  the  termination  of  the  Mexican  war  he  returned  to 
his  home  in  feeble  health  and  without  means,  and  accepted 
employment  for  a  season  as  a  clerk  in  a  wholesale  grocery 
store.     He  afterwards,  in  order  to  obtain  means  to  pur- 


NATHAN    G. SHELLEY.  441 

sue  the  study  of  law,  served  as  deputy  clerk  of  the  Circuit 
Court. 

In  1849  he  received  his  license  to  practice  from  the  Cir- 
cuit Court  at  Talladega,  and,  in  connection  with  such 
practice  as  he  could  obtain,  took  charge  of  the  editorial 
department  of  the  Alabama  Reporter.,  a  newspaper  pub- 
lished at  Talladega,  and  during  the  two  years  he  was  con- 
nected with  that  journal  gained  considerable  reputation 
as  a  terse  and  forcible  writer,  and  exerted  a  recognized 
influence  in  the  arena  of  politics. 

In  1851  he  was  elected  to  represent  his  county  in  the 
Legislature  of  the  State,  and  was  re-elected  in  1853.  In 
this  capacity  his  intellectual  and  physical  energies  had  a 
broader  and  more  prominent  scope,  and  he  promoted  the 
interests  of  his  constituency  in  a  manner  which  gave  the 
highest  satisfaction  and  gained  for  him  both  patronage  and 
popularity. 

In  consequence  of  failing  health  he  spent  the  winter  of 
1854  in  Texas,  and  was  so  much  benefited  by  the  climate 
that  he  determined  to  seek  a  home  in  the  State,  and  in  1855 
removed  to  Austin,  where  he  still  resides. 

In  1856  he  formed  a  copartnership  with  W.  H.  D.  Car- 
rington,  Esq.,  which  continued  until  the  civil  war,  and  his 
practice  constantly  increased  as  his  abilities  and  energies 
became  known  to  the  people. 

"  In  1861  he  was  chosen  to  represent  Travis  County  in  the 
Legislature,  and  in  1862  was  elected  attorney-general  of 
Texas,  and  held  that  office  more  than  a  year  after  his  term  had 
expired,  in  consequence  of  the  declination  of  his  successor 
to  qualify.  During  this  time  he  was  sent  by  the  Governor 
of  Texas  to  Richmond  to  adjust  the  accounts  of  the  State 
with  the  Confederate  government  for  frontier  service, 
and  on  his  return  connected  himself  with  the  command  of 
his  brother,  and  was  with  the  army  of  Gen.  Joseph  E. 
Johnson  in  the  campaign  from  Dalton  to  Atlanta.  The  ob- 
ject of  his  mission  was  accomplished  with  ability  and  fidelity, 
and  in  a  manner  satisfactory  to  all  parties. 

During  the  war  he  was  made  brio-adier-general  of  Texas 
State  troops,  and  his  services  everywhere  were  rendered 


442  BENCH  AND  BAR  OF  TEXAS. 

with  zeal  and  efficiency  ;  and  his  devotion  to  the  cause  which 
he  had  espoused  never  wavered,  nor  did  his  spirit  wane 
so  long  as  there  was  any  hope  of  its  success.  But  when  the 
curtain  closed  over  the  scene,  he  yielded  complacently  to  the 
just  demands  of  the  result,  and  was  content  with  the  pos- 
session of  honor. 

At  the  close  of  the  war  he  returned  to  the  practice  of  his 
profession,  and  formed  a  copartnership  with  Judge  George 
F.  Moore,  which  continued  until  the  latter  was  again 
elected  to  the  Supreme  bench ;  and  when  Judge  Moore  was 
removed  by  military  authority  their  copartnership  was  re- 
sumed and  continued  until  the  latter  was  elected  the  third 
time  to  the  bench  of  the  Supreme  Court.  He  afterwards 
formed  a  copartnership  with  Judge  John  Hancock,  which 
still  exists. 

General  Shelley  is  a  lawyer  of  fine  ability,  and  a  man  of 
the  sternest  integrity.  He  possesses  a  profound  knowledge 
of  law,  and  his  powers  of  research  are  acute  and  indefati- 
gable. He  is  true  and  faithful  to  his  clients,  and  a  man  of 
exemplary  character  in  all  the  relations  of  life.  His  men- 
tal vigor,  accurate  judgment,  and  intense  application  render 
him  a  safe  counselor,  and  he  has  been  eminenty  successful 
in  all  the  branches  of  the  profession.  He  has  been  engaged 
in  many  important  cages,  and  in  many  involving  questions 
of  first  importance  in  the  jurisprudence  of  the  State,  among 
which  may  be  mentioned  the  following:  — 

Fisk  V.  Miller,  20  Texas,  572,  which  was  a  suit  for  injunc- 
tion, and  to  obtain  a  second  action  for  defendant,  as  allowed 
plaintiff  in  trespass  to  try  title  by  statute.  Held,  that  the 
right  of  a  second  suit  was  not  given  to  defendant. 

Mitchell  V.  Burdett,  22  Texas,  633.  Defendant  must 
show  the  incidents  of  ownership  as  specified  in  the  statute, 
and  all  these  continued  in  connection  for  the  full  period  of 
five  years,  to  maintain  the  plea  of  limitation. 

Dorn  V.  Dunham,  24  Texas,  366.  This  case  involved 
the  question  of  possession  in  good  faith  by  one  who  pur- 
chased of  a  tenant  in  common  a  specified  portion  of  the 
common  estate. 

Green  v.  Bank,  24  Texas,  508-522. 


NATHAN    G.  SHELLEY.  443 

Houston,  Top.  &  B.  E.  E.  Co.  v.  Eandolph,  Treasurer, 
24  Texas,  317.  Establishing  a  rule  upon  the  subject  of  man- 
damus. 

Befry  et  al.  v.  Shuler,  25  Texas,  140, 143.  The  rule  under 
the  statute  giving  effect  to  appeal  and  writ  of  error  bonds 
as  judgment  liens  from  the  date  of  execution. 

Ex  parte  F.  H.  Coupland,  26  Texas,  386.  This  case  in- 
volved the  question  of  the  constitutionality  of  the  Conscript 
Act  of  the  Confederate  States  Congress.  He  was  attorney- 
general  at  the  time. 

('herry  v.  Speight,  28  Texas,  503.  This  was  a  suit  upon 
a  judgment  in  favor  of  an  administrator  of  an  estate  in  Mis- 
sissippi to  enforce  payment  out  of  assets  brought  to  Texas, 
in  the  hands  of  the  administrator  of  the  judgment  debtor 
who  died  after  judgment  in  Mississippi. 


444  BENCH  AND  BAR  OF  TEXAS. 


RICHARD    B.    HUBBARD. 


Eichard  Bennett  Hubbard,  minister  of  the  United  States 
to  the  Japanese  Empire,  was  born  in  Walton  County, 
Georgia,  in  the  year  1834.  He  enjoyed  excellent  early 
advantages  and  graduated  with  honor  at  Mercer  Univer- 
sity in  1851.  Having  afterwards  attended  a  course  of  law 
lectures  in  the  University  of  Virginia  he  graduated  in  the 
law  department  of  Harvard  College  in  1852,  and  soon  after- 
wards removed  to  Texas  and  located  in  Tyler,  where  he 
entered  upon  the  practice  of  his  profession  and  has  since 
continued  to  reside.  He  was  a  young  man  of  amiable  dis- 
position and  exceedingly  popular  manners,  which,  with  his 
fine  talents,  introduced  him  at  once  to  public  notice  and 
favor,  and  his  professional  advancement  was  rapid  aud  con- 
tinuous. But  his  patriotic  and  beneficent  traits  of  character 
naturally  inclined  him  to  the  field  of  politics  and  in  1855 
he  relinquished  a  large  a  lucrative  practice  and  entered  upon 
the  canvass  of  the  State  in  the  interest  of  the  Democratic 
party  against  the  Know-Nothing  organization.  The  earn- 
estness of  his  manner  and  the  brilliancy  of  his  oratory 
fascinated  the  people  and  his  services  were  of  decided  and 
enduring  value  to  his  party. 

In  1852  he  was  sent  as  a  delegate  to  the  convention  at 
Cincinnati,  which  nominated  Mr.  Buchanan  for  the  Presi- 
dency and  at  the  request  of  many  leading  Democrats  can- 
vassed Texas  in  advocacy  of  his  election.  Through  the 
influence  of  General  Rusk  and  J.  Pinckney  Henderson,  who 
were  impressed  with  his  ability  and  usefulness,  he  was  ap_ 
pointed  by  Mr.  Buchanan  United  States  attorney  for  the 
Western  District  of  Texas,  and  discharged  the  duties  of 
that  office  with  distinguished  efficiency  until  1858,  when  he 
resigned   it  and  was  chosen  to  represent  his  county  in  the 


RICHARD    B.  HUBBAKD.  445 

Legislature,  in  which  his  services  were  again  conspicuous. 
In  1860  he  was  elected  one  of  the  delegates  from  Texas  to 
the  Charleston  Convention,  in  which  he  was  an  ardent  sup- 
porter of  Breckinridge  and  Lane,  and  exerted  all  his  powers 
to  secure  their  election  in  the  heated  contest  of  the  cam- 
paign w^hich  ensued. 

Mr.  Hubbard  was  deeply  imbued  with  the  principles  which 
actuated  the  Southern  people  in  their  withdrawal  from  the 
Union.  The  sentiments  which  prompted  their  action  in- 
spired his  political  faith  and  he  stepped  boldly  into  the  cur- 
rent of  events  which  flowed  from  it.  He  favored  secession 
as  the  only  means  for  the  accomplishment  of  what  he  con- 
ceived to  be  a  righteous  end,  and  when  hostilities  began  he 
raised  and  commanded  the  Twenty-second  Eegiment  of  Texas 
infantry  and  served  in  the  field  until  the  close  of  the  war. 
He  then  returned  to  Texas  and  devoted  himself  to  agricul- 
tural pursuits  on  his  farm  in  Smith  County,  until  his  politi- 
cal disabilities  were  removed,  when  he  assumed  his  practice 
and  has  since  devoted  himself  almost  exclusively  to  his 
profession. 

He  was  chosen  by  the  Democratic  Convention  of  1872 
one  of  the  electors  for  the  State  at  large  on  the  Greeley 
ticket,  and  by  his  eloquence  and  energy  contributed  largely 
to  the  majorit}^  which  Texas  gave  to  that  candidate.  In 
1874,  he  was  the  president  of  the  Democratic  State  Con- 
vention Avhich  assemble  at  Austin,  and  was  made  chairman 
of  the  State  executive  committee.  He  was  also  a  promi- 
nent candidate  for  the  nomination  for  Governor,  having  re- 
ceived the  next  highest  vote  to  that  which  nominated 
Governor  Coke,  and  was  afterwards  declared  to  be  the 
unanimous  choice  of  the  convention  for  the  office  of  Lieu- 
tenant-Governor, to  which  he  was  elected  by  over  fifty 
thousand  majority.  By  virtue  of  this  office  he  presided 
over  the  Senate  of  the  Fourteenth  Legislature,  and  his 
presidency  of  that  body  was  characterized  by  a  fairness, 
fidelity  and  ability  which  gave  full  satisfaction  to  the  mem- 
bers and  elicited  the  highest  praise  of  the  people.  The 
new  Constitution  of  1875  vacated  all  the  offices  of  the 
State,  and  in  the  following  convention  at  Galveston  he  was 


446  BENCH  AND  BAR  OF  TEXAS. 

re-nominated  for  Lieutenant-Governor  by  acclamation  and 
was  re-elected  by  more  than  a  hundred  thousand  majority 
of  the  popular  vote. 

In  December,  1876,  he  was  elected  to  the  gubernatorial 
chair  in  consequence  of  the  election  of  Governor  Coke  to  a 
seat  in  the  United  States  Senate,  and  his  administration  is 
noted  for  being  one  of  the  most  efficient  and  felicitous  in 
the  history  of  the  State.  The  protection  he  afforded  to 
the  inhabitants  of  the  frontier,  his  stern  and  energetic  sup- 
pression of  crime  produced  a  feeling  of  safety  which  drew 
many  immigrants  to  the  State,  and  set  in  motion  a  flowing 
tide  of  prosperity.  The  measures  of  reform,  which  he 
especially  advised  in  regard  to  public  economy  and  finance, 
are  characterized  by  the  highest  order  of  wisdom  and  fore- 
sight, and  infused  ar-healthful  spirit  into  public  polity. 

His  recommendations  in  regard  to  the  funding  of  pen- 
sion bonds,  the  transportation  of  prisoners,  the  lease  of 
convicts,  the  limitation  of  official  perquisites  and  the  dis- 
position of  the  public  school  lands,  have  been  for  the  most 
part  adopted  by  the  laws  of  the  State.  But  he  was  not  in 
favor  of  a  policy  of  false  economy.  While  he  advised  the 
retrenchment  of  public  expenditures  within  the  means  of 
the  State  to  pay  promptly  and  with  honor,  he  advocated  an 
enlightened  and  liberal  statesmanship,  which  would  "  not 
by  miserly  compensations"  drive  the  ablest  judges  from  the 
bench,  the  most  faithful  clerks  from  their  desks,  and  the 
soldiers  from  their  frontier  posts,  and  he  favored  the 
bestowal  upon  the  institutions  of  charity,  the  colleges,  uni- 
versities and  free  schools  of  Texas  an  intelligent  liberality 
worthy  of  its  dignity  and  the  civilization  of  the  age.  Re- 
fering  to  the  merits  and  defects  of  the  new  Constitution,  in 
his  retirino;  messaoje  in  1879,  he  said:  — 

"  A  final  report  from  the  retiring  executive  at  this  time 
would  be  incomplete  in  the  absence  of  any  allusion  to  our 
organic  law  and  a  statement  of  its  practical  operations 
during  the  period  which  has  elapsed  since  it  went  into  effect. 
Adopted  by  a  very  decided  majority  of  our  voting  people, 
there  were  still  serious  misgivings  on  the  part  of  many  who 
gave  their  sanction  to  it  at  the  polls  that  some  of  its  novel 


RICHARD    B.  HUBBARD.  447 

and  untried  provisions  would  prove  impracticable,  and  that 
the  many  restrictions  thrown  aromid  the  practical  machin- 
ery of  the  State  would,  in  the  end,  seriously  embarrass  the 
government  and  produce  confusion  in  its  administration. 
But  looking  back  now  at  our  recently  past  history  and  re- 
viewing the  diflSculties  which  have  presented  themselves  and 
those  which  we  have  surmounted,  it  is  ascertained  beyond 
question  that  the  fears  of  a  respectable  minority  of  our 
people  were  not  well  founded  and  that  our  organic  law, 
although  still  imperfect  .in  some  of  its  details,  has  demon- 
strated its  excellence  by  practical  experience  and  operation, 
and  should  not  be  idly  displaced  and  tampered  with.  Under 
its  salutary  effect  the  accumulation  of  public  indebtedness 
has  been  wholly  curtailed,  the  outstanding  debts  of  many 
counties  have  been  extinguished,  the  annoyance  and  expense 
of  special  litigation  have  been  almost  altogether  abolished, 
the  public  revenues  of  the  State  have  been  better  collected, 
crime  has  been  more  thoroughly  detected  and  punished,  and 
the  dockets  of  many  of  our  inferior  courts  have  been  cleared 
of  their  accumulations  and  speedy  justice  administered 
between  litigants  in  accordance  with  the  behest  of  our  Bill 
of  Rights. 

"  Some  of  these  blessings  might  have  been  possible  of  ac- 
complishment under  former  systems,  but  for  a  majority  of 
them  we  are  indebted  to  our  present  Constitution.  It  could 
not  be  expected  that  it  would  prove  wholly  good,  coming, 
as  it  did,  from  human  hands,  but  in  approaching  the  delicate 
task  of  its  amendment,  we  should  be  mindful  of  the  good 
developed  in  it  and  take  care  to  hold  fast  to  that,  while  reach- 
ing out  for  the  attainment  of  additional  excellence  and  the 
correction  of  manifest  defects.  In  principle,  an  organic  law 
should  be  seldom  interfered  with  by  legislation,  but  should 
remain  fixed  and  stable,  to  be  studied  and  understood  by . 
the  people,  with  the  aid  of  constantly  recurring  expositions 
from  our  highest  courts  and  wisest  judges.  Frequent 
changes  tend  to  beget  a  spirit  of  unrest  and  to  induce  a 
want  of  respect  for  that  which  has  become  the  key-stone  of 
American  republicanism.  A  fixed  written  Constitution  for 
each   State  and   the  nation,  constitutes    the   distinguishing 


448  BENCH  AND  BAR  OF  TEXAS. 

characteristic  of  our  system  of  republican  government,  and 
the  corner-stone  of  our  future  hopes  as  a  people.  Let  us 
not  so  act  as  to  educate  our  people  to  look  for  constant 
chansre  at  each  recurrino;  session  of  the  Legislature,  but  at 
the  same  time  let  us  not  flinch  from  the  responsibility  of 
proposing  such  corrections  as  the  necessities  of  the  State 
imperatively  demand  at  our  hands. 

"From  careful  observation,  it  occurs  to  me  that  the  chief 
defect  in  our  present  Constitution  arises  from  the  inade- 
quate machinery  provided  by  it  for  the  dispatch  of  litiga- 
tion when  appealed  to  our  higher  courts.  The  overcrowded 
state  of  our  appellate  dockets  was  appreciated  by  the  con- 
vention which  framed  the  constitution,  and  steps  were 
taken  by  that  body  to  provide  adequate  relief  therefor,  by 
the  creation  of  a  Court  of  Appeals,  and  vesting  it  with  ju- 
risdiction over  appeals  in  all  criminal  cases.  This  action, 
it  was  thought,  would  afford  sufficient  relief  to  the  dockets 
of  our  Supreme  Court  to  enable  that  tribunal  to  dispatch 
all  civil  business  then  standing  upon  the  dockets,  and  also 
new  business  that  might  come  before  it.  A  limited  expe- 
rience of  scarce  three  years  has  disappointed  our  just  expec- 
tations and  demonstrated  the  urgent  necessity  for  further 
relief.  Notwithstandins;  the  division  of  labor  so  inaugu- 
rated,  our  Sui)reme  Court  is  further  behind  in  its  business 
than  at  the  date  of  the  adoption  of  the  Constitution  ;  and 
the  Court  of  Appeals  which,  the  first  year  of  its  existence, 
kept  even  pace  with  the  business  upon  its  dockets,  since 
the  expiration  of  that  time  has  found  itself  unable  to  dis- 
patch appeals  as  fast  as  they  accumulate,  and  as  a  conse- 
quence, its  dockets  at  Austin  and  Galveston,  and  especially 
at  the  former  place,  show  a  large  accumulation  of  cases 
undisposed  of  and  awaiting  action.  No  candid  citi- 
zen who  has  had  an  opportunity  for  observing  the  amount 
of  labor  performed  by  the  judges  composing  the  two  courts 
will  hesitate  to  attribute  this  lamentable  condition  of  af- 
fairs to  the  inadequacy  of  the  system,  and  not  to  the  dere- 
liction of  the  individuals  composing  the  two  courts.  Of 
all  the  public  servants  of  the  State,  none  are  compelled  to 
perform  such  ceaseless  labor  as  they  ;  and  it  is  due  to  them, 


RICHARD    B.  HUBBARD.  449 

in  a  lesser  measure,  as  well  as  to  the  public  interest  in  a 
greater,  that  machinery  fully  adequate  to  the  speedy  dis- 
patch of  business  be  provided  without  delay,  by  prelimi- 
nary suggestions  of  the  Legislature  and  ratification  by  the 
people.  In  the  multiplicity  of  the  theories  for  relief,  and 
the  almost  universal  conflict  of  opinion  thereon,  I  can  not 
hope  that  any  suggestions  I  may  make  upon  the  subject 
will  escape  hostile  criticism,  or  commend  itself  to  the  judg- 
ment of  even  a  majority  of  your  honorable  bodies,  but  my 
purpose  will  be  fully  effected  by  drawing  your  early  atten- 
tion to  this  most  serious  grievance,  leaving  you  in  your 
combined  wisdom  to  adopt  some  measure  that  will  afford 
immediate  and  effective  relief  to  the  people  of  the  State; 
for  they  are  the  sufferers  from  this  condition  of  things. 
Nor  can  I  be  expected  to  do  more  than  convey  a  general 
outline  of  my  impressions  in  a  communication  like  this, 
without  attempting  any  discussion  or  going  into  detail, 

"  The  Court  of  Appeals  has  demonstrated  its  capacity  to 
dispatch  all  appeals  of  a  criminal  nature,  and  I  can  see  no 
reason  why  their  jurisdiction  should  not  be  limited  exclu- 
sively to  that  character  of  business.  It  is  most  important 
to  the  State  and  to  every  citizen,  financially  as  well  as 
morally,  that  our  judicial  machinery  for  the  suppression 
and  punishment  of  crime  should  be  fully  adequate  to  our 
necessities,  and  in  case  of  conviction,  as  little  delay  as  pos- 
sible should  occur  in  the  decision  of  appeals  taken  therein. 
The  certainty  and  celerity  of  punishment  is  the  most  im- 
portant factor  in  the  suppression  of  crime,  and  as  by  ex- 
perience we  have  ascertained  that  the  disposal  of  appeals 
in  criminal  cases  will  occupy  the  full  time  of  the  court, 
sound  policy  would  seem  to  dictate  that  it  should  be  re- 
lieved of  its  civil  jurisdiction  in  the  former  class  of  cases, 
rather  than  we  should  embark  upon  further  experiments, 
by  its  abolition  or  consolidation  with  other  tribunals. 
With  the  consolidation  of  all  civil  business  in  the  Supreme 
Court,  the  danger  of  conflict  in  decisions  is  greatly  de- 
creased, if  not  altogether  dissipated,  and  the  main  argu- 
ment against  separate  tribunals  is  met  and  answered. 

*♦  Whatever  reform  may  secure  the  approval  of  30 ur  hoji- 

29 


450  BENCH  AND  BAR  OF  TEXAS. 

orable  bodies,  I  must  be  pardoned  for  reminding  you  that 
the  vast  extent  and  varied  interests  of  our  State,  and  the 
immense  population,  present  and  prospective,  within  its 
borders,  demand  a  judicial  system  of  no  ordinary  charac- 
ter, and  that  a  system  suited  to  small  States,  or  to  ours  in 
its  infancy,  will  not  suffice  for  us  now.  Two  millions  of 
people  can  not  have  their  rights  adjudicated  by  a  judicial 
machinery  provided  for  and  adapted  to  the  wants  of  three 
hundred  thousand;  and  in  applying  a  remedy  to  these  de- 
fects, let  us  not  sacrifice  efficiency  for  the  sake  of  false 
economy,  but  let  us  rather  preserve  the  methods  of  a  true 
economy  by  providing  courts  in  which  '  every  person,  for 
an  injury  done  him,  in  his  lands,  goods,  person,  or  reputa- 
tion, shall  have  remedy  by  due  course  of  law.'  " 

The  administration  of  Gov.  Hubbard  gave  satisfaction  to 
all  classes  of  people,  and  at  the  Democratic  nominating 
convention  of  1878,  before  which  he  was  not  a  candidate, 
he  received  the  unmistakable  assurance  of  popular  favor 
expressed  in  the  following  resolution  introduced  by  Judge 
Thomas  J.  Devine,  and  adopted  with  but  two  dissenting 
votes:  — 

'<  Resolved,  That  it  is  the  sense  of  this  convention  that 
the  administration  of  Gov.  Hubbard  has  been  eminently 
wise  and  just,  and  that  he  deserves  the  unqualified  appro- 
bation of  the  people  of  Texas." 

In  1876  Gov.  Hubbard  delivered  a  Centennial  oration 
which  was  extensively  published,  both  in  this  country  and 
in  Europe,  and  has  been,  no  doubt,  the  means  of  inducing 
many  people  to  emigrate  to  Texas.  He  appeared  in  1879 
before  the  Merchant's  Exchange  of  St.  Louis,  and  pre- 
sented the  inducements  which  Texas  offered  to  the  capital- 
ists of  that  city  for  the  investment  of  their  means,  and 
succeeded  in  eno-ao-ino-  them  to  build  the  Grand  Trunk 
Narrow  Gauge  Railroad  from  Texarkana  to  the  Rio  Grande, 
for  which  he  has  been  the  general  attorney. 

In  1884  he  was  sent  as  a  delegate  to  the  convention  at 
Chicago  which  nominated  Mr.  Cleveland  for  the  Presidency, 
and  was  chosen  temporary  chairman  of  that  assembly,  in 
which  the  dignity  of  his  bearing  and  the   urbanity  of  his 


RICHARD    B.  HUBBARD.  451 

manners  gained  for  him  great  respect  and  admiration. 
His  portly  appearance  was  accepted  as  typical  of  the 
grandeur  of  the  event,  and  as  auspicious  of  the  magnitude 
of  its  result.  It  is  an  inherent  element  in  the  human 
mind,  which  can  not  be  entirely  eradicated  by  culture  and 
experience,  to  associate  great  deeds  and  eminent  qualities 
with  a  powerful  physical  organization,  and  when  we  are  re- 
minded that  the  mighty  Achilles,  after  slaying  the  great 
Hector,  succumbed  to  the  comparatively  feeble  javelin  of 
Paris,  and  that  the  fragile  sling  of  David  was  more  effective 
than  the  ponderous  beam  of  Goliah,  we  are  disposed  to 
refer  it  to  the  miraculous.  V/hether  it  may  be  ascribed  to 
a  state  of  mind  kindred  to  that  produced  by  sublimity,  or 
to  some  subtle  mesmeric  agency,  it  is  certain  that  a  portly 
physical  aspect  and  stentorian  tone  of  voice,  when  there  is 
no  apparent  effort  to  daunt  or  overawe,  add  greatly  to  the 
force  of  an  orator  and  advocate;  and  when  these  are  really 
combined  with  great  powers  of  intellect  the  pre-eminence 
is  complete. 

Governor  Hubbard  possesses  a  large  and  vigorous  mind 
as  well  as  a  huge  physical  form,  and  as  an  orator  he  has 
received  the  sobriquet  of  "  the  Demosthenes  of  Texas." 
He  possesses  in  a  high  degree  the  power  of  feeling  and 
making  others  feel  an  appreciation  of  the  sentiment,  "  Si 
vis  mejiere,  primum  dolendum  est  tibi,''^  the  eloquence  of 
[)assioii.  "  The  highest  order  of  eloquence,"  says  Mr. 
Blair,  "  is  always  the  offspring  of  passion.  A  man  may 
persuade  others  to  act,  by  mere  reason  and  argument ;  but 
that  degree  of  eloquence  which  gains  the  admiration  of  man- 
kind and  properly  constitutes  an  orator,  is  never  found 
without  warmth  or  passion.  *  Passion,  when  in  such  degree 
as  to  arouse  and  enkindle  the  mind  without  throwing;  it  out 
of  the  possession  of  itself,  is  universally  found  to  exalt  all 
the  human  powers.  It  renders  the  mind  infinitely  more  en- 
lightened, more  penetrating,  more  vigorous  and  masterly, 
than  in  its  calmer  moments.  A  man  actufited  by  a  strong 
passion  becomes  much  greater  than  he  is  at  other  times  ;  he 
is  conscious  of  more  strenirth  and  force,  he  utters  sreater 
sentiments,    conceives  higher  designs,  and  executes  them 


452  BENCH  AND  BAR  OF  TEXAS. 

with  a  boldness  and  felicity  of  which,  on  other  occasions, 
he  would  think  himself  entirely  incapable." 

But  to  awaken  this  passion  described  by  Mr.  Blair  there 
must  be  some  inspiring  influence,  some  ruling  motive,  This 
may  be,  as  it  often  is,  a  selfish  ambition  or  a  desire  of  ap- 
plause, or  it  may  arise  from  the  softer  emotions  of  the 
heart,  or  from  a  spirit  of  patriotism  in  which  are  blended 
all  the  noblest  sentiments  of  humanity.  To  this  last  we  may 
ascribe  the  inspirations  which  characterize  the  best  eloquence 
of  Governor  Hubbard. 

During  the  presidential  campaign  of  1884,  at  the  request  of 
the  Democratic  National  Committee,  he  canvassed  the  State 
of  Indiana  for  the  election  of  Cleveland  and  Hendricks,  and 
his  visit  was  everywhere  received  with  the  greatest  appreci- 
ation and  applause.  His  imposing  personal  appearance, 
fine  powers  of  oratory,  placid  manners,  and  flow  of  humor 
enlisted  the  good  will  of  the  people  for  himself  and  his  sec- 
tion as  well  iis  for  his  cause,  and  his  services  and  ability 
have  been  recognized  in  his  recent  appointment  as  Envoy 
Extraordinary  and  Minister  Plenipotentiary  of  the  United 
States  to  the  empire  of  Japan. 

Ex-Governor  Hubbard  has  been  twice  married.  His  first 
wife  was  Miss  Eliza  Hudson,  daughter  of  a  distinguished 
physician  of  Lafayette,  Alabama,  and  his  second  one  was 
Miss  Janie  Roberts,  of  Smith  County,  Texas  ;  a  lady  whose 
charming  grace  and  winning  manners  have  added  to  the 
popularity  and  success  of  her  husband. 


A.  J.  PEELER.  453 


A.   J.   PEELER. 


The  subject  of  this  sketch,  one  of  the  most  eminent 
members  of  the  bar  of  Texas,  was  born  in  Harris  County, 
Georgia,  on  the  22(1  of  April,  1838.  When  he  was  about 
ten  years  of  age  he  immigrated  with  his  father's  family  to 
Florida,  where  he  resided  until  the  spring  of  1873  when  he 
removed  to  Texas.  His  educational  advantages  were  good, 
and  before  he  had  attained  the  age  of  majority  he  was  ad- 
mitted by  a  special  act  of  the  Legislature  of  Florida  to 
practice  law  in  all  the  courts  of  that  State.  He  received 
his  license  from  the  Circuit  Court  at  Tallahassee,  the  capital 
of  the  State,  in  1857,  and  entered  at  once  upon  the  prac- 
tice of  his  profession  at  Newport,  a  small  town  about 
twenty  miles  from  the  capital.  He  remained  there  about 
two  years  and  was  then  elected  clerk  of  the  Supreme  Court, 
an  office  at  that  time  of  considerable  importance,  and  which 
under  the  Constitution  was  required  to  be  filled  by  joint 
ballot  of  the  two  Houses  of  the  Legislature.  He  continued 
in  this  office,  and  at  the  same  time  attended  to  such  prac- 
tice as  he  could  obtain  until  the  outbreak  of  the  war  be- 
tween the  States,  when  he  immediately  entered  the  army 
and  served  first  under  General  Bragg  at  Pensacola  and 
afterwards  under  General  Lee  in  Virginia  until  the  battle 
of  Gettysburg,  in  which  he  was  wounded  and  taken  pris- 
oner. At  the  time  of  his  capture  he  was  first  lieutenant  in 
Company  I  of  the  Fifth  Regiment  of  Florida  Infantry, 
and  had  served  for  a  long  time  as  adjutant  of  that  regi- 
ment. For  several  days  previous  to  the  battle  he  acted  as 
aide-de-camp  to  Colonel  Lang,  who  was  in  command  of  the 
Florida  brigade.  On  the  second  day  of  the  battle,  and  just 
before  the  order  to  charge  was  given,  Lieutenant  Peeler, 
who  was  mounted,  was  sent  to  bring  forward  some  men  who 


454  BENCH  AND  BAR  OF  TEXAS. 

had  been  stationed  a  short  distance  from  the  main  line  of 
battle.  He  returned  with  them  just  as  the  charge  was 
begun,  in  which  he  joined  and  went  through  the  fight  on 
horseback  until  he  was  wounded,  being  the  only  mounted 
officer  of  the  command.  Of  his  gallantry  on  that  occasion 
and  also  at  the  battle  of  Chancellorsville  much  was  said  by 
his  comrades  and  the  newspapers  of  the  time.  Having  re- 
mained more  than  a  month  at  Camp  Letterman  hospital, 
which  was  established  near  the  battle-field,  and  afterwards  a 
short  time  at  the  West's  Building  hospital  in  Baltim(n-e,  he 
was  sent  with  a  large  number  of  other  Confederate  officers  to 
Johnson's  Island,  in  Lake  Erie,  where  he  was  confined  as  a 
prisoner  of  war  until  a  short  time  before  the  surrender  of 
General  Lee  at  Appomattox.  Besides  the  battles  of  Chan- 
cellorsville and  Gettysburg  he  participated  in  the  battle  of 
Fredericksburg  and  other  fights  in  the  hard  fought  fields 
of  Virginia. 

On  being  released  from  prison  he  returned  to  his  home 
in  Tallahassee,  resumed  his  profession  and  engaged  quietly 
but  vigorously  in  the  great  struggle  which  was  now  common 
to  all  the  Southern  people  —  to  procure  meat  and  bread  for 
themselves  and  families.  He  did  not  possess  a  cent,  but 
was  soon  afterwards  fortunate  enough  to  be  employed  in 
the  defense  of  a  quartermaster  of  the  United  States  army, 
who  was  being  tried  by  a  court-martial.  And  it  is  a  singu- 
lar incident  that  an  ex-Confederate  officer,  with  even  the 
Confederate  buttons  upon  his  worn  and  tattered  coat,  which 
under  military  orders  were  required  to  be  covered,  should 
have  earned  his  first  fee  in  appearing  before  the  handsomely 
uniformed  officers  of  the  United  States  army  and  in  repre- 
senting an  officer  of  that  army.  A  dollar  in  greenbacks 
seemed  then  to  be  a  fortune,  and  he  counted  several 
hundred  of  them  for  his  fee  in  this  case,  and  says  that  he 
never  felt  so  rich  in  his  life.  In  quick  succession  he  ap- 
peared in  various  important  cases  before  military  commis- 
sions. The  determination  of  all  controversies,  for  a  while, 
even  those  involving  the  life  and  liberty  of  the  people  of 
the  South,  rested  with  these  tribunals,  and  his  services  were 
valuable  to  his  countrymen. 


A.  J.  PEELER.  455 

When  the  convention  to  form  a  State  Constitution  under 
President  Johnson's  scheme  of  reconstruction  was  called, 
Mr.  Peeler  was  made  Secretary  of  that  body,  and  to  him 
the  convention  confided  the  duty  of  arranging  and  publish- 
ing the  Constitution.  Upon  the  adjournment  of  the  con- 
vention he  was  appointed  by  Provisional  Governor  Marvin 
with  the  Hon.  Chas.  H.  Dupont,  ex-chief  justice  of  the 
Supreme  Court,  and  the  Hon.  M.  D.  Papy,  ex-attorney- 
general,  to  report  a  revision  of  all  the  laws  of  the  State  to 
the  first  Legislature  to  be  held  under  the  new  Constitution  — 
the  object  of  the  revision  being  to  adapt  the  laws  to  the 
changed  condition  of  things,  brought  about  by  the  abolition 
of  slavery,  etc.  Mr.  Peeler  was  elected  a  member  of  this 
Legislature,  and  the  fact  that  he  had  been  a  member  of 
this  commission  and  that  the  greater  part  of  the  labor  of 
the  Legislature  was  devoted  to  the  ^consideration  of  the 
matters  covered  by  its  report,  and  with  which  he  was  nec- 
essarily more  familiar  than  any  other  member  of  the  body, 
gave  to  him  a  special  prominence  in  its  deliberations. 
Though  always  afterwards  taking  an  active  interest  in  the 
political  affairs  of  the  State,  from  1866  u^d  to  the  time  of  his 
removal  to  Texas,  he  declined  to  be  a  candidate  for  any  other 
political  place,  devoting  himself  exclusively  to  his  practice, 
which  constantly  increased,  both  in  number  and  importance 
of  the  cases.  He  was  a  delegate  to  the  first  National  Demo- 
cratic Convention  after  the  war,  held  in  Tammany  Hall,  in 
New  York,  in  1868,  and  regularly  attended  as  a  delegate  all 
the  State  Conventions,  besides  discharging  the  full  measure 
of  his  duty  upon  the  stump  whenever  called  upon,  beino- 
always,  and  at  all  times  and  under  all  circumstances,  a 
staunch  Democrat.  For  several  years  before  Mr.  Peeler 
i-emoved  to  Texas  he  represented,  in  connection  with  his 
partner,  the  Hon.  M.  D.  Papy,  the  Jacksonville,  Pensacolu 
and  Mobile  Eailroad  Company  in  its  most  important  litio-a- 
tions.  He  also  represented  the  Trustees  of  the  Internal 
Improvement  Fund  of  the  State  in  an  equity  case  in  the 
United  States  Circuit  Court,  involving  very  large  interests 
and  presenting  questions  of  unusual  difficulty  and  import- 
ance.    Some  idea  of  the  questions   involved   in   this   case 


456  BENCH  AND  BAR  OF  TEXAS. 

may  be  gathered  from  Vose  v.  Reed  et  al.,  Trustees,  de- 
cided by  Mr.  Justice  Bradley,  and  reported  in  1  Woods, 
647,  where  Mr.  Peeler's  name  appears  as  first  among 
counsel  for  defendants.  He  also,  in  connection  with  the 
Hon.  George  P.  Rainy,  then  his  partner  and  afterwards 
attorney-general  and  now  associate  justice  of  the  Supreme 
Court  represented  Governor  Reed  in  his  celebrated  quo 
warranto  proceedings  before  the  Supreme  Court  of  the 
State.  The  contest  in  this  case  was  between  Reed,  the  Gov- 
ernor, who  had  been  impeached  by  the  Senate,  and  Glea- 
son,  the  Lieutenant-Governor,  who  insisted  that  he  was 
entitled  to  the  reins  of  government  pending  the  impeach- 
ment. Though  the  fight  was  a  fight  between  the  two  wings  of 
the  Republican  party,  which  at  that  time  had  control  of  the 
State,  it  was  one  to  which  no  citizen  of  the  State  could  be 
indifferent,  threatening,  as  it  did,  bloodshed  and  anarchy, 
destructive  alike  to  the  interests  of  all.  Though  exceed- 
ing, perhaps,  in  feeling  and  excitement  the  celebrated 
contest  between  Bashford  and  Barstow  (4  Wis.  567)  for 
the  governorship  of  Wisconsin,  it  resembled  that  case  in 
many  of  its  features.  The  argument  of  Mr.  Peeler  before 
the  Supreme  Court  was  given  wide  publicity  in  the  papers, 
and  to  his  effort  and  that  of  his  able  associate  is  due  in 
a  great  measure  the  judgment  rendered  in  their  favor, 
which  resulted  in  the  peace  and  order  of  society  which 
soon  followed.  An  elaborate  report  of  this  case  will  be 
found  in  12  Florida  Reports,  p.  190.  Gleason  after  his  defeat 
made  an  ineffectual  attempt  to  carry  the  matter  to  the 
Supreme  Court  of  the  United  States  (Gleason  v.  Florida, 
9  Wall.  779). 

Notwithstanding  Mr.  Peeler's  prominence  at  the  bar  of 
Florida  and  his  large  and  valuable  practice,  like  many 
others  he  grew  tired  of  the  constant  turmoil  and  passion  so 
constantly  incited  and  maintained  by  the  dominant  party 
between  the  two  races  and  determined  to  seek  a  new  home. 
Austin  being  the  capital  of  Texas,  with  Supreme  and  Fed- 
eral courts  —  courts  with  the  practice  of  which  Mr.  Peeler 
was  familiar,  he  determined  to  make  it  his  future  home, 
and  where  since  the  early  part  of  1873 he  has  resided.     Mr. 


A.  J.  PEELER.  457 

Peeler,  soon  after  settling  in  Austin,  received  retainers  m 
several  important  cases,  especially  in  the  Supreme  and 
Federal  courts,  and  began  at  once  to  build  up  a  practice. 
Messrs.  W.  J.  Montgomery  and  A.  S.  Fisher  were  asso- 
ciated with  him  in  the  practice  about  two  years,  when,  owing 
to  the  increase  of  business  in  the  Supreme  Court  and  the 
inability  of  the  attorney-general  to  give  it  personal  atten- 
tion, the  Legislature  from  the  necessities  of  the  case,  created 
the  office  of  assistant  attorney-general,  and  it  was  tendered 
to  Mr.  Peeler  by  Governor  Coke.  Mr.  Peeler  accepted  and 
was  the  first  to  hold  the  position.  His  term  having  expired, 
he  was  a  second  time  appointed  by  Governor  Coke,  and 
was  in  each  instance  up.animously  confirmed  by  the  Senate. 
At  this  time  the  Hon.  George  Clark  was  attorney-general, 
and  it  may  be  said  without  disparaging  any  of  the  dis- 
tinguished gentlemen  who  have  since  held  these  places,  that 
the  office  of  attorney-general  as  conducted  by  the  Hon. 
Georo;e  Clark  and  Mr.  Peeler  gave  entire  satisfaction  to  the 
courts,  the  bar  and  the  people.  So  conspicuous  were  Mr. 
Peeler's  services  at  the  Tyler  term  of  the  Supreme  Court  in 
1875,  that  upon  the  conclusion  of  its  labors  at  that  place 
the  following  complimentary  note  was  handed  to  him :  — 

"  Supreme  Court    Room 
'<  Tyler,  December  15,  1875. 

"  Col.  A.  J.  Peeler,  Assistant  Attorney -General  — 

"  Sir:  In  closino;  the  labors  of  a  three  months'  session  ot 
the  Supreme  Court,  upon  which  you  have  attended  as  the 
representative  of  the  government,  we  deem  it  proper  to 
express  to  you  our  entire  satisfaction  at  the  manner  in 
which  you  have  discharged  the  very  arduous  duties  devolved 
upon  you  and  our  conviction  that  the  interest  of  the  public 
and  the  citizen  has  alike  been  protected  by  your  labors. 

'♦  O.  M.  Roberts, 
"  R.  A.  Reeves, 
"  George  F.  Moore, 
**  Robert  S.  Gould, 
*'  John  Ireland." 


458  BENCH  AND  BAR  OF  TEXAS. 

An  excamination  of  the  43,  44  and  45  Texas  Reports  will 
show  the  extent  of  Mr.  Peeler's  labors  in  behalf  of  the 
State  before  the  Supreme  Court.  But  perhaps  the  most 
important  duty  discharged  by  him  while  holding  the  office 
of  assistant  attorney-general  was  in  making  a  thorough  and 
exhaustive  examination  of  the  management  of  the  State 
penitentiary  at  Huntsville  and  in  preparing  and  submitting 
an  elaborate  report  of  his  investigation.  Under  the  law 
creating  the  office  of  assistant  attorney -general,  power  was 
ofiven  to  the  Governor  to  assign  to  this  officer  such  duties  as 
he  thought  proper.  In  the  early  part  of  1875  the  public  mind 
of  the  State  was  greatly  excited  over  newspaper  reports  of 
alleged  mismanagement  and  cruel  treatment  of  convicts  by 
the  lessees  of  the  penitentiary.  Governor  Coke  appointed 
a  commission  consisting  of  Messrs.  Peeler,  D.  H.  Triplett 
and  Tillman  Smith  to  thoroughly  investigate  the  matter. 
The  investigation  was  continued  for  some  two  months  — 
the  commissioners  visiting  the  penitentiary,  the  various 
camps  where  convicts  were  stationed,  and  examining  many 
witnesses.  Upon  the  conclusion  of  their  labors  Mr.  Peeler, 
from  the  large  mass  of  material  before  him,  prepared  a 
report  which  was  printed  by  the  State  and  was  used  by  the 
departments  of  the  government,  the  Constitutional  Conven- 
tion of  1876,  and  succeeding  Legislatures  as  a  book  of  ref- 
erence. Instead  of  submitting  a  mere  sensational  report, 
Mr.  Peeler  went  thoroughly  into  the  whole  subject  —  giv- 
ing a  full  history  of  the  penitentiary  from  its  organization, 
compiling  all  the  laws  in  relation  to  it,  setting  out  the 
leases,  giving  copies  of  all  documents  and  explaining  the 
relation  of  the  lessees  to  the  State  and  their  rights  and  lia- 
bilities under  their  contract  and  the  management  of  the 
penitentiary  while  under  their  control.  This  report  also 
contains  a  great  deal  of  valuable  matter  collected  from 
outside  sources  showing  the  policy  pursued  in  other  States 
in  the  discipline  and  treatment  of  convicts.  No  official 
report  in  this  State,  up  to  that  time,  had  been  more  com- 
plete and  exhaustive  and  none  could  have  been  read  with 
greater  interest. 

Apprehending  that  the  State  might  be  compelled  at   any 


A.  J.  PEELER.  459 

time  to  resume  control  of  the  penitentiary,  Mr.  Peeler,  at 
the  request  of  Governor  Coke,  drafted  the  law  authorizing 
its  resumption  by  the  State,  which  will  be  found  in  the 
General  Laws  of  the  Fifteenth  Legislature,  page  193,  and 
which  was  passed  as  prepared  by  him  without  any  material 
change.  This  law  afterwards  made  an  important  figure  in 
the  litigation  between  the  State  and  the  lessees.  Mr. 
Peeler  also,  at  the  request  of  Governor  Coke,  drew  the 
forgery  law  of  July  28,  1876  (see  General  Laws,  p.  59). 
The  extent  to  which  land  forgeries  were  being  committed 
at  that  time  and  the  boldness  of  the  perpetrators  of 
these  frauds,  both  within  and  without  the  State,  was  an 
overshadowing  evil  —  one,  in  the  suppression  of  which 
prompt  and  severe  measures  were  required.  Mr.  Peeler 
was  engaged  several  weeks  in  the  preparation  of  this  law, 
carefully  examining  the  forgery  statutes  of  the  United 
States  and  of  other  States  and  Territories  in  the  Union. 
No  law  could  be  drawn  with  more  exact  regard  to  every 
conceivable  detail  in  this  class  of  crime.  And  through  this 
law  forgeries  of  land  titles  in  Texas  were  so  completely 
crushed  that  it  is  a  rare  thing  now  to  find  a  forgery  case 
upon  the  criminal  docket.  The  able  commissioners  who 
prepared  the  present  revision  of  the  laws  of  Texas  thinking 
this  subject  perhaps  sufficiently  covered  by  the  more  gen- 
eral provisions  of  the  criminal  code,  omitted  the  law  pre- 
jiared  by  Mr.  Peeler,  but  the  Legislature  being  unwilling  to 
take  the  chances  of  dispensing  with  a  law  which  had  accom- 
plished such  useful  results,  restored  it  in  totidem  verbis, 
and  it  so  stands  on  the  statute  book.  It  has  often  been 
discussed  by  the  Court  of  Appeals,  and  though  furiously 
assailed,  upon  constitutional  and  many  other  grounds,  it 
has  been  sustained  ;  and  it  may  be  said  that  no  single  act 
of  legislation  affecting  the  criminal  jurisprudence  of  the 
State  has  occupied  a  more  prominent  place  than  this  law. 

With  the  view  of  devoting  himsalf  exclusively  to  his  pro- 
fession, Mr.  Peeler  resigned  the  office  of  assistant  attorney- 
general  in  October,  1876.  Governor  Coke,  in  accepting 
his  resignation,  which  he  stated  he  did  with  extreme 
regret,  said  :  "  The  rare  ability  and  great  labor  and  learn- 


4(30  BENCH    AND    BAR    OF    TEXAS. 

nag  which  has  distinguished  your  administration  in  the  at- 
torney-general's office,  and  your  honest  fidelity  to  all  the 
interests  of  the  State  under  your  official  care,  entitle  you 
eminently  to  the  plaudit  '  well  done,'  so  grateful  to  the 
conscientious  public  servant.  I  take  great  pleasure  in  tes- 
tifying to  the  thoroughness,  watchfulness  and  skill  which 
has  characterized  the  discharge  of  your  duties,  and  you" 
great  efficiency  as  a  public  officer." 

Attorney-General  Boone,  in  a  communication  to  Mr. 
Peeler  touchino;  his  resiijnation,  uses  this  language :  "  I 
would  be  doing  injustice  to  you  and  a  grosser  injustice  to 
my  own  sense  of  honor  were  I  not  frankly  and  cheerfully 
to  acknowledge  that  your  counsel  and  assistance  have  been 
to  me  invaluable.  I  have  always  found  you  ready,  willing 
and  able,  conscientious  and  zealous  in  the  discharge  of  your 
official  duties  and  as  jealous  of  the  reputation  of  the  Attor- 
ney-General's Department  as  of  your  own.  I  regret  your 
resignation  and  feel  that  the  State  has  lost  a  faithful,  able, 
and  efficient  officer,  and  I,  an  assistant  to  whom  I  am  in- 
debted in  a  very  large  measure  for  whatever  of  success  with 
which  the  duties  of  this  department  have  been  discharged 
since  I  became  its  chief  officer.  I  add  with  the  greatest 
pleasure  that  you  have  always  been  kind  and  courteous ;  and 
our  association,  official  and  personal,  has  been  to  me  most 
pleasant  and  agreeable."  And  among  other  complimentary 
notices  from  the  press,  the  Galveston  News  said:  "  Those 
Avho  have  been  conversant  with  the  laborious  and  difficult 
duties  of  the  office  of  the  assistant  attorney-general  under 
the  administration  of  Governor  Coke,  and  the  efficiency  with 
which  they  have  been  discharged  by  Col.  A.  J.  Peeler,  will 
note  with  regret  his  resignation.  An  able  and  studious 
lawyer,  a  cultivated  scholar,  a  conscientious  and  valuable 
public  servant,  as  Col.  Peeler  proved  himself  to  be,  will  not 
be  permitted  to  withdraw  himself  from  the  public  service 
without  a  proper  recognition  of  his  eminent  usefulness.  A 
professional  man  of  such  merit  is  not  often  appreciated  by 
his  political  superiors,  but  the  public  will  recognize  him 
according  to  his  worth." 

Governor  Hubbard,  who  succeeded  Governor  Coke,  upon 


A.  J.  PEELER.  461 

the  election  of  the  latter  to  the  United  States  Senate,  deter- 
mined, under  the  authority  given  by  the  act  above  mentioned, 
to  resume  control  of  the  penitentiary.  To  resist  this  move- 
ment on  the  part  of  the  State,  Messrs.  Ward,  Dewey  and 
Patton,  the  lessees,  employed  able  counsel,  Messrs.  Han- 
cock &  West,  representing  Ward  and  Dewey  and  ex-Gov. 
E.  J.  Davis  representing  Patton,  The  difficulties,  to  say 
nothing  of  the  magnitude  of  the  interest  involved,  which  con- 
fronted Gov.  Hubbard  in  attempting  this  resumption  were 
very  considerable.  Mr.  Peeler  having  necessaril}^  given  much 
attention  to  the  subject,  while  assistant  attorney-general, 
was  at  once  engaged  to  represent  the  State  in  the  matter. 
It  was  under  his  advice  and  upon  papers  prepared  by  him 
that  the  Governor  proceeded  at  every  step  in  this  important 
matter.  To  avoid,  as  far  as  practicable,  the  question  of  the 
right  on  the  part  of  the  State  to  seize  the  penitentiary  and 
convicts  against  the  wishes  of  the  lessees,  Mr.  Peeler  pre- 
pared the  correspondence  between  the  Governor  and  the 
lessees,  in  which  the  right  of  the  State  at  a  certain  time  to 
peaceably  take  control  was  conceded.  The  Hon.  C.  S. 
West,  now  of  the  Supreme  bench,  representing  the  lessees 
and  Mr.  Peeler  representing  the  State,  visited  the  peniten- 
tiary at  the  time  of  the  resumption  in  April,  1877,  for 
the  purpose  of  advising  as  to  the  manner  in  which  it 
was  to  be  effected,  and  the  property  turned  over,  etc. 
Many  questions  of  importance  and  difficulty  had  to  be  set- 
tled, notably  the  manner  of  taking  the  inventory  and 
appraisement  of  the  property  —  the  State  desiring  on  the 
one  hand  to  incur  no  liabilit}^  and  pay  no  higher  price  for 
the  property  than  under  the  law  and  contract  of  lease  it  was 
bound  to  pay,  and  the  lessees  who  had  erected  buildings, 
added  machinery  and  accumulated  a  large  amount  of  prop- 
erty, desiring  to  have  the  same  taken  back  by  the  State 
upon  the  most  favorable  terms  to  them.  Patton,  one  of  the 
lessees,  protested  against  the  right  of  the  State  to  resume  con- 
trol. The  inventory  and  account  being  completed,  showed 
as  claimed  by  the  State,  a  balance  due  to  it  of  some  $72,000. 
Ward,  Dewe}^  &  Patton  recognizing  no  such  indebtedness, 
claimed  that  the  State  was  indebted  to  them  in  a  very  large 


462  BENCH  AND  BAR  OF  TEXAS. 

amount.  Under  the  resumption  law,  the  lessees,  if  not  sat- 
isfied with  the  appraisement,  were  authorized  to  sue  the 
State.  As  they  declined  to  do  this,  Gov.  Hubbard,  after 
advising  with  Attorney-General  Boone  and  Mr.  Peeler,  con- 
cluded to  sue  the  lessees  for  the  recovery  of  this  alleged 
balance,  deeming  it  best  to  have  the  matter  settled  by  judi- 
cial determination  than  to  leave  it  open  to  constant  appeals 
for  legislative  relief.  For  this  purpose  he  employed  Mr. 
Peeler  and  his  partner,  T.  S.  Maxey,  Esq.,  to  institute  suit. 
Suit  was  brought  in  the  District  Court  of  Travis  County 
aofainst  the  lessees  and  their  bondsmen.  The  labor  of  tho 
preparation  of  this  suit  and  of  the  defense  can  hardly  bo 
overestimated.  Several  inventories  consisting  of  hundreds 
of  pages,  with  a  vast  mass  of  documentary  testimony  had  to 
be  examined  with  great  care.  Ward,  Dewey  &  Patton,  re- 
presented by  the  able  counsel  above  mentioned,  interposed 
every  defense  which  could  be  made,  and  sought  by  way  of 
reconvention  to  recover  a  judgment  against  the  State  for 
somethins:  like  a  half  a  million  of  dollars.  A.  S.  Walker, 
judge  of  the  Travis  District  Court,  having  at  one  time  been 
of  counsel  for  Ward,  Dewey  &  Patton,  being  disqualified, 
J.  H.  Burts,  Esq.,  now  assistant  attorney-general,  was  ap- 
pointed special  judge.  The  case  was  tried  before  a  jury  and 
occupied  two  entire  weeks,  each  day's  labor  beginning  early 
in  the  morning  and  ending  late  at  night.  Every  inch  of  the 
ground  was  stubbornly  contested,  and  few  cases  have  re- 
ceived so  large  a  share  of  public  attention.  The  responsibil- 
ity and  anxiety  of  the  counsel  for  the  State,  when  a  judgment 
for  so  large  an  amount  was  sought  against  it,  can  be  readily 
appreciated.  Hon.  A.  T.  McKinney,  of  Huntsville,  who 
had  also  been  retained  by  Gov.  Hubbard  in  the  matter  of  re- 
sumption, assisted  Mr.  Peeler  in  the  trial  of  the  case.  The 
trial  resulted  in  a  verdict  for  the  State  in  the  sum  of  $15,000. 
The  lessees  carried  the  case  to  the  Supreme  Court,  in  which 
Mr.  Peeler  represented  the  State,  and  the  judgment  of  the 
court  below  was  affirmed.  Thus  ended  one  of  the  most 
important  and  difficult  suits,  perhaps,  ever  tried  in  any  Dis- 
trict Court  in  the  State. 

Mr.  Peeler,  by  special  retainer,  in  conjunction  with  his 


A.  J.   PEELER.  463 

former  partner,  S.  R.  Fisher,  Esq.,  had  previously  repre- 
sented the  State  in  the  Supreme  Court,  in  what  is  generally 
known  as  the  '*  Rio  Grande  Cases,"  brought  under  the  act  to 
adjndicate  claims  to  lands  situated  between  the  Nueces  and 
Rio  Grande  Rivers.  The  case  of  the  State  v.  Cardinas,  and 
other  cases  to  be  found  in  47  Texas,  show  the  nature  of  the 
questions  and  the  extent  of  the  interests  involved  in  these 
suits.  But  the  most  important  case  with  which  Mr.  Peeler 
has  ever  been  connected,  and  one  which  stands  almost  un- 
precedented in  the  jurisprudence  of  the  country,  is  what  is 
known  as  the  "  Mercer  Colony  Case."  The  following  com- 
munication from  Mr.  Peeler  to  the  Governor  of  the  State, 
together  with  the  letters  accompanying  it,  presents  as  suc- 
cinctly as  possible  the  history  of  this  most  remarkable  liti- 
gation :  — 

"  Law  Office,  Austin,  Texas,  February  2,  1885. 

*'  To  His  Excellency  John  Ireland,  Governor  of  Texas  — 

"Sir:  Having  been  retained  by  your  predecessor  to 
represent  the  State  of  Texas  in  what  is  generally  known  as 
the  <  Mercer  Colony  Case,'  I  now  have  the  honor  to  report 
to  you  the  final  disposition  made  of  said  cause;  and  in 
making  this  report  it  will  be  proper,  as  I  have  not  been 
fully  paid  for  my  services,  to  give  a  brief  history  of  the 
case  that  the  nature  and  extent  of  such  services  may  be 
understood. 

"The  suit  grows  out  of  a  colony  contract  between  the 
Republic  of  Texas  and  General  Mercer,  made  January  29, 
1844.  This  contract  was  the  leading  subject  of  debate  in 
the  Constitutional  Convention  of  1845.  The  original  bill 
was  filed  March  6,  1875,  in  the  United  States  Circuit  Court, 
at  Austin,  by  George  Hancock,  a  citizen  of  Kentucky,  who 
claimed  as  chief  trustee  to  represent  the  rights  of  Mercer 
and  associates  against  J.  J.  Gross,  Commissioner  of  the 
General  Land  Office  of  Texas.  Upon  the  death  of  Hancock, 
General  William  Preston  became  complainant,  and  William 
C.  Walsh,  succeeding  Gross  as  Commissioner,  was  made 
defendant. 

"It   was  claimed   in  the  original   bill   that  Mercer  and 


464  BENCH  AND  BAR  OF  TEXAS. 

associates  had  introduced  and  actually  settled  under  said 
colony  contract  1,256  emigrant  families,  for  which  the}' 
were  entitled  to  1,256  sections  of  640  acres  each,  being 
one  section  for  each  family,  and  in  addition  thereto  120 
sections,  being  ten  premium  sections  for  each  one  hundred 
families,  making  in  all  1,376  sections  or  880,640  acres  of 
land. 

"  The  nature  of  the  relief  sought  by  this  bill  is  disclosed  by 
an  order  for  an  interlocutory  injunction  granted  April  12, 
1879,  as  follows:  — 

"  '  That  a  writ  of  injunction  do  issue  out  of  this  court, 
and  under  the  seal  thereof,  directed  to  W.  C.  Walsh,  Com- 
missioner of  the  General  Land  Office  of  the  State  of  Texas, 
his  clerks,  draftsmen,  subordinates,  agents,  servants,  and 
employes,  and  all  his  successors  in  office,  and  all  their 
clerks,  draftsmen,  subordinates,  agents,  servants,  and  em- 
ployes, and  all  officers  or  agents  subordinate  to  him,  or 
to  any  of  his  successors  in  office,  or  under  the  direction, 
supervision  or  control  of  him,  or  of  any  of  his  successor  or 
successors  in  office,  enjoining  him  and  them,  and  each  and 
every  of  them,  from  issuing  or  delivering,  or  causing  to  be 
issued  or  delivered,  or  permitting  to  be  issued  or  delivered, 
to  any  person  or  persons  or  corporation  any  plat  or  plats 
with  a  view  of  making  locations  within  said  colony  limits, 
certificate  or  certificates,  patent  or  patents,  for  any  lands  or 
land  within  the  boundaries  of  Mercer's  colony,  as  set  forth 
in  the  bill  of  complaint  and  the  exhibits  therewith  filed,  and 
therein  defined,  and  from  any  further  interference  with  or 
infringement  of  the  land  grant  or  land  reservation  known 
as  Mercer's  colony,  and  from  doing  or  causing  to  be  done 
any  act  or  thing  whereby  there  may  issue  any  patent,  cer- 
tificate, plat  or  grant  of  any  lands  within  the  boundaries  of 
said  Mercer's  colony,  as  defined  and  set  forth  in  the  said 
bill  of  complaint  and  exhibits  therewith  filed,  and  as  set 
forth  in  the  copy  of  the  contract  made  on  the  twentj'-ninth 
January,  1844,  by  and  between  the  Republic  of  Texas,  by 
Sam  Houston,  President  thereof,  and  Charles  Fenton  Mer- 
cer, filed  herein,  whereof  the  original  is  on  file  in  the  office 
of  the  Secretary  of  State  of  the  State  of  Texas,  and  a  copy 


A.  J.  PEELER.  465 

is  on  file  in  the  office  of  the  Commissioner  of  the  General 
Land  Office  of  the  State  of  Texas,  except  to  the  complain- 
ant, William  Preston,  until  the  final  hearing  of  the  case.' 

"  The  injunction  was  granted  by  Judge  Woods,  then  cir- 
cuit Judge,  and  now  on  the  Supreme  Bench  of  the  United 
States.  His  opinion  delivered  at  the  time  will  be  found  in 
3  Wood's  C.  C.  Rep.,  page  351.  The  demurrer  was  argued 
in  behalf  of  the  State  by  Hon.  George  McCormick,  then 
attorney-general.  After  this,  complainant  filed  an  amended 
bill  December  24,  1879,  the  main  object  of  which  was  to 
compel  by  mandatory  injunction  the  Commissioner  of  the 
General  Land  Office  to  issue  certifica:tes  to  lands  of  equal 
value  to  be  located  by  them  upon  any  part  of  the  public 
domain  of  the  State. 

"Some  time  before  this,  Judge  S.  A.  Willson,  of  the 
Court  of  Appeals,  then  associated  with  W.  P.  Gaines,  Esq., 
was  emplo^'ed  by  the  Governor  to  represent  the  State,  and 
after  his  employment  Peeler  &  M;ixey  were  also  retained. 
My  connection  with  the  case  began  with  the  preparation  of 
an  amended  answer  in  response  to  amended  bill,  which  was 
filed  February  2,  1880.  Judge  Willson  had  in  the  mean- 
time given  much  attention  to  the  matter  of  evidence,  per- 
sonally visiting,  in  different  parts  of  the  State,  old  settlers 
of  the  colony,  and  obtaining  from  them  information  touching 
the  performance  of  the  contract  by  Mercer  and  associates, 
thus  laying  the  foundation  for  obtaining  testimony  that 
afterwards  proved  of  great  value. 

"  Judge  Willson  and  myself  prepared  and  had  printed  and 
distributed  from  the  General  Land  Office  a  number  of  ques- 
tions which  were  sent  to  every  person  in  the  State,  through 
whom  we  thought  it  likely  information  material  to  the  suit 
could  be  obtained.  The  replies  to  these  questions  were 
useful  guides  in  taking  the  depositions  of  the  witnesses  for 
the  defense.  The  testimoii}'  being  complete  on  both  sides, 
the  case  was  brought  to  a  final  hearing  at  Austin,  January 
16,  1882,  before  his  honor.  Judge  Pardee,  the  circuit 
judge. 

"  For  the  complainant,  the  case  was  argued  bj'^Mr.  John 
Mason   Brown,  of  Louisville,  Kentucky,  and  Judge  O.  S. 

30 


466  BENCH  AND  BAR  OF  TEXAS. 

West,  of  Austin ;  and  for  the  State,  by  Judge  S.  A. 
Willson  and  myself.  The  hearing  was  concluded  January 
26,  1882,  and  on  that  day  a  final  decree  was  rendered  as 
follows :  — 

"  'This  cause  came  on  to  be  heard  at  this  term  on  the 
twenty-sixth  day  of  January,  1882,  and  was  argued  b}'' 
counsel;  and  thereupon,  upon  consideration  thereof,  it  was 
and  now  is  ordered,  adjudged  and  decreed  as  follows, 
namely  : 

"  '  First.  That  the  complainant's  allegations  are  found  to 
be  true  and  supported  by  the  proof ;  and  that  the  order  and 
writs  of  injunction  heretofore  granted  and  issued  in  this 
cause  is  hereby  made  perpetual ;  and  the  defendant,  W.  C. 
Walsh,  commissioner  of  the  general  land  office  of  the 
State  of  Texas,  and  all  and  every  his  successors  in  office, 
and  all  his  clerks,  draftsmen,  subordinates,  agents,  servants, 
and  employes,  and  all  officers  or  agents  subordinate  to  him, 
the  said  defendant,  or  to  any  of  his  successors  in  office,  or 
in  any  manner  under  the  directions,  supervisions,  or  control 
of  him,  or  of  any  of  his  successors  in  office,  be  and  hereby 
is  and  are  restrained,  prohibited,  and  forever  enjoined 
from  issuing  or  delivering,  or  permitting  to  be  issued  or 
delivered,  to  any  person  or  persons,  or  to  any  corporation, 
any  certificate  or  certificates,  patent  or  patents,  plat  or 
plats,  for  any  land  or  lands  within  the  boundaries  of  Mer- 
cer's colony,  as  set  forth  in  the  bill  of  complaint  and  the 
exhibits  therewith  filed;  and  from  any  and  all  interference 
with,  or  infringement  of,  or  upon,  the  land  grant  or  land 
reservation  known  as  Mercer's  colony;  and  from  doing,  or 
causing  to  be  done,  any  act  or  thing  whereby  there  may 
issue  any  patent,  certificate,  plat,  or  grant  of  any  land 
within  the  boundaries  of  said  Mercer's  colony,  as  defined  and 
set  forth  in  the  bill  of  complaint  and  the  exhibits  filed,  and 
as  set  forth' in  the  contract  made  on  the  twenty-ninth  of 
January,  1844,  by  and  between  the  Republic  of  Texas,  by 
Sam  Houston,  President  thereof,  and  Charles  Fenton  Mer- 
cer, filed  herein,  whereof  the  original  is  on  file  in  the  office 
of  the  Secretary  of  State  of  Texas,  and  a  copy  is  on  file  in  the 
office  of  the  commissioner  of  the  greueral  land  office  of  the 


A.  J.    PEELER.  467 

State  of  Texas,  except  to  the  complainant,  William  Preston, 
as  chief  a^ent  of  the  Texas  Association,  or  his  successors 
or  assigns,  or  to  such  person  or  persons  as  he  or  his  succes- 
sors may  in  writing  direct. 

"  'And  it  is  further  ordered,  adjudged,  and  decreed,  that 
the  defendant,  William  C.  Walsh,  Commissioner  of  the 
General  Land  Office  of  the  State  of  Texas,  and  each  and 
every  his  successors  in  office,  and  all  his  or  their  servants, 
employes,  agents,  clerks,  draftsmen,  surveyors,  deputies, 
and  subordinates,  each  and  every  one  be  and  the  same  are 
enjoined,  restrained,  and  prohibited  from  hindering,  ob- 
structing, preventing  or  delaying  the  said  William  Preston, 
his  agents,  attorneys,  employes,  or  the  successors  or 
assigns  of  said  Preston  and  their  agents,  attorneys  or 
employes,  in  the  surveying,  selecting,  platting,  recording, 
entering  or  claiming  any  and  all  lands  lying  within  the 
limits  and  boundaries  of  the  so-called  Mercer  colony  as  set 
forth  in  the  bill  of  complaint  and  the  exhibits  therewith 
filed;  and  the  said  defendant  and  his  successors  in  office, 
and  his  and  their  agents  and  subordinates  are  enjoined  from 
hindering,  obstructing,  preventing,  or  delaying  the  said 
Preston  or  his  successors  or  assigns,  or  the  Texas  Land  Asso- 
ciation, from  performing  and  completing  and  perfecting  all 
and  singular  the  several  conditions,  duties,  obligations,  and 
acts  devolving  upon  the  said  Preston  or  said  association, 
under  the  terms  and  stipulations  of  the  colonization  contract 
set  forth  in  the  bill  of  complaint  in  this  cause,  and  in  the 
exhibits  filed  with  the  said  bill  of  complaint,  provided^ 
that  this  decree  and  the  injunction  herein  shall  not  be  held 
nor  intended,  to  affect  any  lands  appropriated  or  set  apart 
by  the  act  of  Congress  of  the  Republic  entitled,  "An  act 
appropriating  certain  lands  for  the  establishment  of  a  gen- 
eral system  of  education,"  approved  January  26,  1839,  and 
which  lands  were  legally  located,  surveyed  and  appropriated 
for  a  State  university,  prior  to  January  29,  1844,  the  date 
of  the  Mercer  colonization  contract. 

"  'And  it  is  further  ordered  and  adjudged  that  the  defend- 
ant do  pay  all  the  costs  herein  incurred,  the  clerk  to  tax 
the  same  and  that  proper  process  issue  therefor.' 


4(58  BENCH    AND    BAR    OF    TEXAS. 

"An  elaborate  opinion  in  support  of  this  decree  will  be 
found  in  10  Federal  Reporter,  p.  315. 

"  Immediately  after  this  decree,  Judge  Willson,  whose  val- 
uable services,  to  which  I  have  already  referred,  contributed 
to  the  ultimate  success  of  the  defense,  having  been  appointed 
a  judge  of  the  Court  of  Appeals,  ceased  his  connection  with 
the  case,  and  its  management  thereafter,  until  its  final 
decision  by  the  Supreme  Court  of  the  United  States,  fell 
exclusively  upon  me,  and  had  defeat  instead  of  success  fol- 
lowed, it  should,  if  upon  any  one,  have  been  visited  upon 
me. 

"  Immediately  after  this  decree.  General  Preston  caused 
a  notice  to  be  published  in  the  Austin  Statesman^  to  the 
effect  that  the  Mercer  colony  grant  had  been  fully  estab- 
lished, and  that  all  locations,  surveys  and  patents  within 
its  limits  after  January  29,  1844,  had  been  declared  invalid. 
All  parties  interested,  desiring  information,  were  directed 
by  this  notice  to  confer  with  his  attorneys  and  agents  at 
Austin.  The  object  of  this  notice  is  apparent,  and  I  am 
informed  that  some  persons,  to  avoid  injury  and  loss,  did 
pay  to  Preston  or  his  agents  money,  in  order  to  get  their 
patents  from  the  general  land  office. 

' '  The  effect  of  this  decree  will  be  better  understood  b}' 
reference  to  a  communication  from  the  Hon.  W.  C.  AYalsh, 
commissioner  of  the  land  office,  addressed  to  counsel  for 
the  State,  for  the  purpose  of  aiding  the  advancement  of  the 
cause  in  the  Supreme  Court  of  the  United  States.  He 
&ays:  — 

"  'As  commissioner  of  the  general  land  office  of  the 
State  of  Texas,  and  appellant  in  the  above  entitled  cause,  I 
desire  you  to  make  an  effort  to  have  the  same  advanced  at 
the  present  term  of  the  Supreme  Court.  My  reason  for 
wishing  a  more  speedy  determination  of  the  case  than 
would  follow  if  it  takes  its  course  on  the  docket  is,  that  the 
decree  appealed  from  embarrasses  the  administration  of  the 
land  department  of  the  State  government,  and  operates  to 
the  prejudice  of  a  large  number  of  citizens. 

"  '  Mercer's  colony  contains  within  its  limits,  as  claimed 
about  4,000,000  acres  of  land  and  embraces  in  whole,  the 


A.  J.  PEELER.  469 

counties  of  Navarro,  Kaufman,  Rockwall  and  Hill,  and  in 
part,  the  counties  of  McLennan,  Limestone,  Freestone, 
Anderson,  Henderson,  Van  Zandt,  Raines,  Hunt,  Hopkins, 
Collin,  Dallas,  Ellis,  Johnson,  Hood  and  Somervell,  and 
must  have  at  this  time,  taking  as  a  basis  the  United  States 
Census  Report  for  1880,  a  pojDulation  of  not  less  than  131,- 
000. 

"  *  It  is  very  important  to  the  people  of  this  rich  and  thickly 
settled  section  that  they  should  be  able  to  obtain  from  my 
office  copies  of  maps,  plats,  etc.,  to  be  used  in  settling  and 
adjusting  the  corners  and  boundaries  of  their  lands.  Many 
of  the  surveys  are  old,  and  the  landmarks  have  passed 
away,  and  recourse  to  records  and  papers  in  my  office  is 
essential  to  their  re-establishment.  Under  the  injunction 
perpetuated  by  the  Circuit  Court,  in  its  final  decree,  I  am 
restrained  from  issuing  any  patent,  certificate,  plat  or  grant 
of  any  land  within  the  boundaries  of  said  colony  ;  and  not- 
withstanding repeated  requests,  I  have  not  only  refused  to 
furnish  maps  or  plats  or  copies  thereof,  but  even  to  answer 
interrogatories  from  the  courts  of  the  State,  when  such 
interrogatories  would  require  copies  of  papers  or  maps  or 
plats  of  land  pertaining  to  titles  within  said  colony.  The 
effect  of  all  this  is  to  tie  up  the  land  office,  and  practi- 
cally deny  to  a  considerable  portion  of  the  people  of  the 
State  access  to  the  records  of  my  office,  and  this  too,  though 
their  titles  may  have  originated  long  before  the  Mercer  col- 
ony grant,  and  may  have  no  connection  therewith. 

"  'As  I  construe  the  injunction,  it  also  precludes  me  from 
giving  official  information  or  furnishing  maps  to  county 
surveyors  with  reference  to  county  boundaries  within  said  col- 
ony and  is  in  many  other  ways  an  obstruction  to  the  adminis- 
tration of  the  affairs  of  my  office.  As  you  are  aware,  hav- 
ing no  personal  interest  in  the  matter,  being  simply  an  offi- 
cer of  the  State,  I  was  unable  to  give  a  supersedeas  bond 
and  William  Preston  has  now  a  suit  pending  in  the  Circuit 
Court,  filed  since  the  appeal  was  perfected,  an  application 
for  the  appointment  of  a  receiver,  to  divest  me  of  all  control 
of  matters  pertaining  to  said  colony.  As  to  whether  it  is 
prcjposed   to  press  this  application,  I  can  not  say,  but  this 


470  BENCH  AND  BAR  OF  TEXAS. 

and  such  like  proceedings  afford,  it  seems  to  me,  an  addi- 
tional reason  why,  if  it  be  possible,  the  case  should  be 
advanced.' 

«'  Governor  Roberts  in  a  communication  for  the  same  pur- 
pose, says: — 

'* '  I  concur  with  the  Hon.  Wm.  C.  Walsh,  commissioner  of 
the  general  land  office  of  the  State  of  Texas,  in  the  propriety 
of  making  an  effort  to  advance  the  case  to  which  he  is 
appellant  in  the  Supreme  Court  of  the  United  States.  The 
State,  it  is  true,  is  not  nominally  a  party  to  the  suit,  but  the 
decree  appealed  from,  operates  directly  upon  a  State  offi- 
cial, and  obstructs  him  in  the  discharge  of  important  duties 
in  which  the  State  and  a  large  number  of  citizens  are  inter- 
ested. I  hope  you  may  be  able,  in  view  of  the  nature  of 
the  case  and  the  public  interest  involved,  to  secure  its 
speedy  determination.' 

"  And  in  speaking  of  this  decree  of  the  Supreme  Court  of 
the  United  States,  says :  '  It  is  not  very  easy  to  see  on  what 
principle  this  decree  can  be  sustained.  There  is  no  decree 
by  which  the  right  of  plaintiff  to  any  specific  land  is  affirmed 
nor  to  any  ascertained  quantity  of  land  to  be  located  gen- 
erally. 

"  '  There  is  no  attempt,  as  there  can  be  none  in  this  suit  to 
adjust  the  conflicting  rights  of  the  State  of  Texas,  and  the 
plaintiff  in  this  land.  There  is  no  attempt  to  define  the 
number  of  acres  to  which  the  plaintiff  is  entitled,  or  what 
he  is  yet  to  do,  or  what  he  may  do,  to  perfect  his  right  to 
any  land  whatever. 

"  'And  yet  without  establishing  any  such  right  or  deciding 
what  plaintiff  may  yet  do  to  establish  a  right,  the  hands  of 
the  o-overnment  are  tied  absolutely  to  all  the  vacant  land 
which  belongs  to  it  within  the  colony  limits.  Not  only  are 
the  hands  of  the  government  thus  tied,  but  other  persons 
havms:  rights  inchoate  or  vested  in  those  lands,  with  undis- 
puted  claims  to  patents,  to  certificates,  to  surveys  perhaps, 
are  all  arrested  in  the  precise  condition  they  may  be  at  the 
time  this  decree  was  rendered.  The  whole  land  office  bus- 
iness and  functions  of  the  commissioner  within  that  colony, 
no  matter  whose  interests    are  involved,  are  paralyzed  by 


A.  J.   PEELER.  471 

this  decree.  And  what  is  more,  they  are  paralyzed  forever  ; 
for  the  lanorua2;e  is  that  the  commissioner  and  all  his  clerks, 
agents,  etc.,  are  enjoined  forever  from  doing  the  forbidden 
acts.' 

"  Upon  consultation  it  was  deemed  advisable  by  Governor 
Eoberts,  Hon.  W.  C.  Walsh,  commissioner  of  the  land 
office,  and  Hon.  J.  H.  McLeary,  then  attorney-general, 
to  prosecute  an  appeal  from  this  decree  to  the  Supreme 
Court  of  the  United  States.  In  the  propriety  of  this  action 
Judge  Willson,  and  my  then  law  partner,  Mr.  Maxey,  and 
myself  concurred.  Governor  Roberts,  representing  the 
State,  entered  into  a  written  agreement  with  Peeler  &  Maxey 
to  prosecute  this  appeal  upon  the  following  terms  :  Peeler 
&  Maxey  were  to  pay  all  traveling  and  other  personal  ex- 
penses, and  were  to  receive  in  full  for  services  $2,500  cash, 
and  a  similar  amount  when  the  case  was  submitted  to  the 
Supreme  Court,  making  the  whole  fee  $5,000.  The  State 
was  to  pay  the  costs  of  suit,  etc.  The  contract  is  in  dupli- 
cate, one  being  in  my  possession  and  the  other  on  file  in  the 
executive  office. 

"  The  third  clause  of  this  contract  reads:  '  Inasmuch  as 
the  appeal  in  said  case  does  not  operate  as  a  supersedeas, 
and,  pending  the  appeal,  various  efforts  may  be  made  to 
enforce  the  decree  in  the  Circuit  Court,  it  is  further 
agreed  that,  if  steps  of  importance  should  be  taken  in  said 
case,  in  the  said  Circuit  Court,  pending  said  appeal, 
such  as  may  not  reasonably  have  been  anticipated,  and  as 
require  considerable  labor  and  attention  from  counsel,  then 
a  fair  compensation  for  such  service,  to  be  hereafter  agreed 
upon,  is  to  be  allowed  and  paid  by  said  State.' 

"As  soon  as  it  was  settled  that  I  was  to  take  charge  of  the 
case,  I  at  once  took  steps  to  perfect  the  appeal.  This  being 
done,  I  had  the  transcript,  which  contained  six  hundred  and 
eightv-nine  pages,  made  up  under  my  own  personal  super- 
vision. In  addition  to  this  I  prepared  a  history  of  the  case 
for  the  use  of  the  State,  containing,  together  with  the  appen- 
dix thereto,  two  hundred  and  forty-six  pages  of  printed 
matter.  This  was  a  work  of  great  labor  and  occupied  much 
of  my  time.     The  object  of  its  preparation  was  to  have,  in 


472  BEXCH  AND  BAR  OF  TEXAS. 

view  of  the  importance  the  case  had  assumed  and  the  extent 
to  which  public  and  private  rights  were  involved,  a  full  and 
accurate  history  of  everything  in  relation  thereto  for  the 
information  of  the  officers  and  Legislature  of  the  State. 
The  advantage  of  such  a  document,  in  the  event  of  an 
appeal  to  the  Legislature  for  relief  or  for  a  compromise  as 
was  apprehended  might  be  made,  led  to  the  publishing  of 
several  hundred  copies  of  this  document  by  the  State,  some 
of  which  I  suppose  still  remain  in  the  public  archives. 

"  For  this  I  neither  charged  nor  expected  compensation. 
The  transcript  was  completed  June  8,  1882,  and  was  at  once 
forwarded  to  Washington,  and  filed  in  the  Supreme  Court, 
June  26,  1882.  After  perfecting  the  appeal  in  the  interest 
of  the  State  for  the  defendant,  Walsh  (Cause  No.  863)  the 
complainant,  Preston,  also  perfected  and  prosecuted  an 
appeal  (Cause  No.  864)  in  his  own  behalf,  thus  making  two 
cases  instead  of  only  one,  as  was  contemplated  at  the  time 
the  contract  for  fee  was  made.  As  already  noted  in  the 
communication  of  Commissioner  Walsh,  he  was  unable  to 
give  a  supersedeas  bond,  and  the  complainant,  taking  ad- 
vantage of  this,  applied  to  the  June  term  of  United  States 
Circuit  Court  for  the  appointment  of  a  receiver  to  collect 
and  lake  charge  of  all  funds,  lands,  etc.,  to  which  Mercer 
and  associates,  or  those  claiming  under  them,  asserted  title 
under  the  final  decree  of  the  Circuit  Court,  and  generally, 
for  that  it  was  its  purpose,  to  administer  the  land  office  so 
far  as  the  country  embraced  within  the  limits  of  the  colony 
contract  was  concerned.  This  application,  the  effect  of 
which,  if  granted,  would  have  been  most  mischievous  upon 
the  interests  of  the  State  and  the  people,  was  pressed  in 
open  court  by  Gen.  Preston  and  Mr.  John  Mason  Brown 
before  Judge  Woods.  It  was  resisted  by  me,  and  the 
result  of  the  arsument  was  that  Judire  Woods  then  declined 
to  grant  the  relief,  but  required  the  commissioner  to  put  in 
an  answer  which  I  afterwards  prepared  and  filed.  After- 
ward the  complainant  abandoned,  pending  the  appeal,  and 
in  view  of  the  steps  which  had  been  taken  to  advance  the 
case,  all  further  efforts  in  this  direction.  This  was  a  matter 
which  occupied  much  of  my  time,  and  for  which,  under  the 


A.  J.  PEELER.  473 

third  clause  of  the  contract,  I  am  entitled  to  a  reasonable 
compensation. 

"  Seeing  the  importance  of  an  early  decision,  I  vyent  to 
AVashington  in  December,  1882,  for  the  purpose  of  endeav- 
oring to  get  the  Supreme  Court  to  advance  the  case  on  its 
docket.  I  went  by  New  Orleans  on  my  way  to  Washington 
and  had  a  personal  conference  with  Judge  Pardee,  and  suc- 
ceeded in  obtaining  from  him  a  communication  recommend- 
ing the  advancement  of  the  case.  Though  not  strictly  a 
case  which  under  the  rules  the  Supreme  Court  would 
advance,  T  had  the  good  fortune  to  obtain  an  order  for  its 
advancement,  and  for  the  hearing  of  the  cause  in  March, 
1883.  But  for  this,  the  case  would,  in  all  probability,  not 
have  been  reached  until  some  time  in  1886.  I  then  re- 
turned home,  and  at  once  began  the  preparation  of  my 
brief,  which,  together  with  the  appendix,  contains  two  hun- 
dred and  forty-six  pages  of  printed  matter.  In  addition  to 
my  brief  proper  on  the  appeal  of  Commissioner  Walsh 
(Cause  No.  863),  I  was  compelled  also  to  prepare  a  brief 
of  forty-four  pages  of  printed  matter  for  the  purpose  of 
meeting  the  appeal  (Cause  No.  864)  taken  by  Preston. 
While  I  never  had  much  doubt  of  being  able  to  reverse 
the  decree  of  the  court  upon  the  appeal  of  Commissioner 
Walsh,  I  naturally  felt  great  concern  when  in  addition  to 
this  I  was  called  upon  to  meet  the  questions  raised  by 
Preston  on  his  appeal.  That  the  difference  between  the 
two  cases  may  be  appreciated,  I  give  the  errors  as  assigned 
by  Walsh  on  his  appeal,  and  the  errors  as  assigned  by 
Preston  on  his  appeal. 

"  The  errors  assigned  by  Walsh  are  as  follows:  — 

"  '  1.  The  court  erred  in  decreeing  under  law  and  proofs 
that  Mea-cer  and  associates  had  so  performed  the  conditions 
of  their  contract  with  the  Republic  of  Texas  as  to  acquire 
thereunder  rights  susceptible  of  judicial  cognizance  and  en- 
forcement. 

"  '  2.  The  court  erred  in  holdingthat  articles  of  annexation 
between  United  States  and  the  Republic  of  Texas  created  a 
trust  in  favor  of  Mercer  and  associates  cognizable  by  said 
court. 


474  BENCH  AND  BAR  OF  TEXAS. 

*'  '  3.  The  court  erred  in  not  sustaining  defendant's  plea 
of  res  atl judicata. 

"  '  4.  The  court  erred  in  not  sustaining  defenses  of  stale 
demand,  laches  and  acquiescence. 

"  '  5.  The  court  erred  in  holding  that  complainant  had 
shown  such  interest  in  subject-matter  of  suit  and  such  title 
in  himself  as  to  authorize  decree  in  his  favor. 

"  '  6.  The  court  erred  in  not  dismissing  bill,  because  in 
effect  a  suit  against  State  of  Texas. 

"  <  7.  The  court  erred  in  not  sustaining  defendant's  objec- 
tions for  want  of  parties. 

"  <  8.  The  final  decree,  as  rendered,  is  not  only  contrary  to 
law,  but  fails  to  define  rights  of  complainant  or  duties  of 
defendant,  and  must  prove  nugatory  so  far  as  real  merits 
of  controversy  are  concerned.  Said  decree  is  further 
erroneous  in  adjudging  cost  of  suit  against  defendant 
Walsh.' 

<'  The  errors  assigned  by  Preston  are  as  follows  :  — 

"  '  The  Circuit  Court  declined  to  give  relief  to  the  extent 
prayed  by  complainant :  — 

"  '  1.  It  refused  to  grant  a  mandatory  injimction  inhib- 
itino-  the  land  commissioner's  further  refusal  to  issue  cer- 
tificates and  patents  for  the  ascertained  quantity  of  land 
(1376  sections)  under  the  contract,  within  the  colonial 
boundaries,  or  its  equivalent  in  value  elsewhere. 

"  »  2.  It  refused  a  similar  mandatory  injunction  inhib- 
iting his  refusal  to  issue  certificates  and  patents  on  tender 
of  the  contract  price,  for  the  alternate  1376  sections  within 
the  colonial  boundaries,  or  its  equivalent  in  value  else- 
where. 

"  '  3.  It  refused  to  grant  a  mandatory  injunction,  the 
effect  of  which  would  be  to  permit  the  location  of  com- 
plainant's patents  and  certificates  on  any  vacant  and  unoc- 
cupied lands  of  Texas,  within  or  without  the  limits  of 
Mercer  colony. 

"  '  4.  It  refused  to  recognize  complainant's  claim  as  a 
trust  fastened  upon  the  entire  public  domain  and  enforce- 
able in  equity  as  against  the  unappropriated  lands.' 

'♦  On  behalf  of  Preston,  three  printed  briefs  were  filed  in 


A.  J.  PEELER.  475 

the  Supreme  Court,  one  by  General  Preston,  one  by  Mr. 
Mason  Brown  and  one  by  Mr.  George  Davie,  making  with 
the  documents  thereto  appended,  243  pages. 

"  The  two  cases  were  argued  orally  before  the  court  by 
Messrs.  Brown  &  Davie  for  Preston,  and  by  myself  in  be- 
half of  the  State.  Owing  to  the  importance  of  the  case, 
the  court  declined  to  hear  it  without  a  full  bench,  and 
owing  to  the  press  of  business  before  the  court  it  was  not 
decided  until  the  ensuing  term,  on  November  19,  1883. 
The  opinion  of  the  court,  delivered  by  Mr.  Justice  Miller, 
with  whom  concurred  Chief  Justice  Wait  and  Associate 
Justices  Bradley,  Wood,  MatthcAvs,  Gray  and  Blatchford, 
and  the  dissenting  opinion  of  Mr.  Justice  Harlan,  with 
whom  concurred  Mr.  Justice  Field,  will  be  found  on  109 
United  States,  page  297.  An  examination  of  these  opinions 
will  show  what  the  court  considered  the  questions  presented 
upon  the  two  appeals. 

"  The  judgment  of  the  court  was  that  upon  the  appeal 
of  Walsh  the  decree  of  the  Circuit  Court  below  be  reversed 
and  the  case  remanded  with  directions  to  dismiss  the  bill 
which  necessarily  disposed  also  of  Preston's  appeal.  After 
an  attentive  examination  of  the  dissenting  opinion  of  Mr. 
Justice  Harlan,  taking  into  consideration  the  fact  that 
Judo-es  Wood  and  Pardee  had  both  rendered  unfavorable 
opinions  and  the  former  was  one  of  the  members  of  the 
bench  to  finally  pass  upon  the  case,  it  can  hardly  be  said 
that  the  case  was  free  from  difficulty  or  was  not  one  requir- 
ing great  labor  and  involving  great  professional  responsi- 
bility. 

"As  soon  as  it  could  be  done  after  the  Supreme  Court 
had  decided  the  case,  I  obtained  a  mandate  from  that  court 
and  filed  it  in  the  United  States  Circuit  Court  at  Austin,  and 
at  the  May  term  of  the  said  last  named  court  I  obtained  a 
decree  directing,  in  pursuance  of  the  mandate,  the  bill  to  be 
dismissed  and  taxing  all  costs  of  the  suit  from  its  inception 
against  William  Preston.  A  certified  copy  of  this  decree  I 
caused  to  be  at  once  filed  with  the  commissioner  of  the 
general  land  office,  and  this  finally  disposing  of  the  case^ 
my  connection  therewith  ceased. 


476  BENCH  AND  BAR  OF  TEXAS. 

"  I  submit  herewith  a  copy  of  the  printed  report  of  the 
case  made  for  the  use  of  the  State,  a  copy  of  the  printed 
transcript  of  the  case,  and  copies  of  the  briefs  of  the  cases 
on  both  sides,  on  the  two  appeals  as  filed  in  the  Supreme 
Court  of  the  United  States. 

"  Though  I  have  expended  a  considerable  portion  of  what 
I  have  received  out  of  the  fee  coming  to  Mr.  Maxey  and 
myself,  in  going  to,  returning  from  and  remaining  at  Wash- 
ington and  practically,  from  the  time  the  case  went  to  the 
Supreme  Court,  until  its  argument  in  March,  1883,  aban- 
doned all  other  business  so  as  to  give  it  my  best  attention  I 
ask  nothing  further  as  to  the  appeal  (cause  No.  863)  of  Com- 
missioner Walsh.  However  dlsproportioned  it  may  seem, 
when  compared  with  the  magnitude  of  the  interests  in- 
volved and  the  consequent  labor  and  responsibility  of  coun- 
sel, I  am  bound  by  the  contract  and  make  no  complaint.  I 
only  ask  for  such  reasonable  compensation  as  I  may  be  en- 
titled to  for  services  rendered  the  State  in  the  matter  of  the 
application  for  the  appointment  of  a  receiver  and  in  the 
matter  of  Preston's  appeal  (in  cause  No.  864).  For  these 
services  the  contract  contemplates  I  shall  be  paid,  and  I  am 
prepared  to  agree  with  your  Excellency,  or  any  other  rep- 
resentative of  the  State,  having  authority  to  act  in  the 
premises  at  any  time  on  the  amount  thereof.  If  your  Ex- 
cellency has  no  appropriation  which  you  can  apply  to  my 
claim,  I  then  trust  it  will  meet  your  approval  for  me  to 
inclose  copies  of  this  communication  to  members  of  the 
Legislature  now  in  session,  upon  whose  judgment  as  to 
what  is  right  I  must  rely  —  a  judgment  which  shall  be  ex- 
ercised so  far  as  I  am  concerned  free  from  personal  appeals 
and  influences. 

*'  If  I  have  seemed  to  give  special  prominence  to  my  own 
services  in  the  case,  it  is  not  from  any  desire  to  detract 
from  other  counsel,  for  I  cheerfully  accord  to  all  high  abili- 
ties and  a  faithful  discharge  of  duty,  and  claim  no  honor 
which  I  do  not  willingly  share  with  them  ;  but  it  is  because 
I  am  presenting  my  personal  claim,  it  having  been  under- 
stood between  Mr.  Maxey  and  myself,  after  the  dissolution 
of  our  copartnership,  that  for  services  not  covered  by  the 


A.  J.   PEELER.  477 

veofular  fee  in  which  we  paiticipated,  I  should  be  entitled  to 
the  compensation.  In  conclusion,  it  is  proper  for  me  to 
saj  that  I  have  submitted  this  communication  to  Gov. 
Eoberts,  Hon.  W.  C.  Walsh,  Hon.  J  H.  McLeary,  Hon. 
S.  A.  Willson,  and  Col.  W.  P.  Gaines,  former  law  partner 
of  Judge  Willson,  and  to  T.  S.  Maxey,  Esq.,  my  former 
partner,  with  the  request  that  if  I  have  fallen  into  any 
errors  or  mistakes,  they  point  them  out.  A  reply  from 
from  each  of  these  gentlemen  will  be  found  herewith. 

**  Kespectfully  submitted,  A.  J.  Peeler." 

"General  Land  Office,      ) 
"Austin,  Texas,  January  31,  1885.  ) 

*'  -4.  J.  Peeler,  Esq.,  Austin,  Texas  — 

"  Dear  Sir  :  I  think  your  communication  is  in  every  par- 
ticular correct. 

"Very  respectfully,  W.C.Walsh." 

«'  Austin,  Texas,  January,  31,  1885. 
"  Col.  A.  J.  Peeler,  Austin  — 

"  Dear  Sir  :  I  have  examined  your  report  of  the  '  Mer- 
cer Colony  Case  '  and  I  believe  it  to  be  entirely  correct.  I 
do  not  hesitate  to  say  that  the  compensation  received  by 
you  in  this  case,  considering  the  immense  interests  at  stake, 
the  important  questions  involved,  and  your  valuable  and 
untiring  services  to  the  State,  is  far  below  what  it  should 
have  been,  and  in  my  opinion  your  claim  for  additional 
compensation  is  proper  and  just. 

"  Kespectfully  yours,  Wm.  P.  Gaines." 

"Austin,  Texas,  January  31,  1885. 
"  Col.  A.  J.  Peeler  — 

"  Dear  Sir  :  I  have  received  printed  communication  ad- 
dressed to  the  Governor  relating  to  your  employment  and 
services  in  the  Mercer  Colony  case  in  the  Federal  courts. 
The  claim,  though  unfounded,  was  surrounded  with  a  variety 
of  circumstances  that  gave  it  a  plausible  appearance  of 
merit,  which  required  a  thorough  and  laborious  investigation 
into  the  facts  and  law  of  the  case,  and  a  competent  knowl- 


478  BENCH  AND  BAR  OF  TKXAS. 

edge  of  equity  and  of  equity  practice  in  the  Federal  courts. 
The  suit,  as  I  regard  it,  was  a  bold  adventure  in  an  effort  to 
enlist  the  powers  of  a  Federal  court  of  equity  to  restrain 
the  action  of  the  State  government  in  regard  to  the  land 
within  the  large  and  populous  territory  of  the  State,  known 
as  Mercer's  Colony,  and  to  throw  a  cloud  upon  the  land 
grants  of  the  persons  who  resided  within  it,  so  as  to  force 
in  the  end  some  sort  of  a  legislative  compromise  similar  to 
that  which  was  effected  in  the  claim  of  the  Peters'  Colony 
contractors.  The  ability  and  apparent  confidence  with 
which  the  case. was  prosecuted,  the  wide  range  of  the  mat- 
ters involved  in  it,  obscured  by  the  long  lapse  of  time,  to 
which  may  be  added  the  great  uncertainty  as  to  what  extent 
a  Federal  court  of  equity  might  go  in  its  interference  with 
the  operations  of  the  State  government  to  reach  some  com- 
pensation for  a  supposed  inchoate  equity,  together  with  the 
very  unfavorable  decisions  of  the  Federal  Circuit  Court 
tending  in  that  direction,  made  it  necessary  to  give  to  the 
case  almost  constant  attention  and  watchfulness,  so  as  to  be 
able  to  meet  the  different  positions  in  the  case. 

"  I  know  that  much  of  your  time  was  devoted  to  this  case 
from  the  time  of  your  employment  to  the  end  of  it  in  the 
Supreme  Court,  That  you  was  equal  to  the  task  is  fully 
shown  by  your  written  history  and  brief  of  the  case,  but  it 
is  still  made  more  perspicuous  in  the  decision  made,  and 
opinion  delivered  by  the  Supreme  Court  of  the  United 
States  in  the  case.  That  opinion  shows  that  the  specious 
and  adventitious  circumstances  attending  the  case  were  elimi- 
nated, and  the  baseless  foundation  of  the  case  made  bare  to 
view,  which  required  the  court  not  only  to  revise  the  judg- 
ment of  the  Circuit  Court,  but  to  order  the  bill  to  be  dis- 
missed, which  put  an  end  to  the  claim  forever. 

"  O.  M.  Egberts." 

"Austin,  Texas,  January  31,  1885. 

♦'  Col.  A.  J.  Peeler^  Austin  — 

"  Dear  Col.  :  I  have  examined  your  report  to  the  Gov- 
ernor in  reference  to  the  Mercer  Colony  case,  and  it  seems 
to  be  correct.     My  own  personal  services  in  the  matter  were 


A.  J.  PEELER.  479 

unimportant,  having  remitted  the  case  entirely  to  your  own 
management. 

"I  hope  the  Governor  will  appreciate  the  propriety  of 
your  reasonable  request  in  seeking  compensation  for  services 
not  covered  by  the  fee  originally  paid,  and  that  you  will  be 
able  without  further  difficulty  in  effecting  an  amicable  and 
satisfactory  arrangement  as  to  the  amount  of  the  same. 

"  If  I  can  be  of  any  service  in  the  premises,  it  will  give 
me  pleasure  to  assist  you. 

«*  T.  S.  Maxey." 

"San Antonio,  Texas,  February  1,  1885. 

"  Col.  J.  Peeltr,  Austin,    Texas  — 

"  My  Dear  Friend  :  Your  favor  of  January  31,  just  at 
hand.  I  have  carefully  read  your  printed  letter  to  Governor 
Ireland  dated  to-morrow,  and  cheerfully  say  that  it  is  a  very 
plain,  accurate  statement  of  your  connection  in  the  Mercer 
Colony  case.  You  have  not  dealt  as  fully  as  you  might 
probably  have  done  on  the  extent  of  your  labors,  the  unre- 
mitting Zealand  signal  ability  with  which  you  managed  this 
case.  The  State  could  not  have  been  more  ably  nor  more 
successfully  represented.  You  ought  to  be  paid  according 
to  the  contract. 

"  Yours  truly,  J.  H.  McLeary." 

"  Austin,  Texas,  February  2,  1885. 

*'  Hon.  A.  J.  Peeler,  Austin,  Texas  — 

"Dear  Sir:  I  have  had  the  pleasure  of  reading  your 
report  to  his  excellency  Governor  Ireland  of  the  litigation 
known  as  the  Mercer  Colony  case.  Having  for  a  time  been 
connected  with  you  in  that  litigation,  I  am  able  to  say  that 
the  report  is  not  only  accurate  in  its  facts,  but  very  liberal 
in  its  statements  in  regard  to  the  services  of  myself  and 
others.  I  say  truthfully  that  it  is  attributable  to  your  great 
labor  and  eminent  abilities  that  this  important  litigation  was 
brought  to  a  successful  termination,  and  at  so  early  a  day. 
I  trust  your  valuable  services  to  the  State  in  this  matter  will 
be    properly   appreciated  and  liberally    compensated,  and 


480  BKNCH  AND  BAR  OF  TEXAS. 

knowino;  as  I  do  the  amount  of  labor  and  the  great  loss  of 
time  which  has  been  occasioned  to  you  by  reason  of  your 
faithful  attention  to  the  interests  of  the  State,  I  know  that 
the  pay  which  you  have  already  received  is  poor  compensa- 
tion indeed,  compared  with  what  you  deserve,  and  compared 
with  the  benefit  which  has  accrued  to  the  State. 

<'  Very  respectfully,  Sam  A.  Willson." 

'*  Executive  Office,  Austn,  Texas,  Feb.  5,  1885. 
*'  Col.  A.  J.  Peeler,  Austin  — 

"  Sir:  I  am  in  receipt  of  your  favor  of  date  2d  inst., 
with  accompanying  package.  I  congratulate  you  on  the 
early  and  successful  termination  of  the  Mercer  Colony  case, 
and,  in  behalf  of  the  State,  thank  you  for  the  valuable  ser- 
vices rendered  by  you. 

"  With  reference  to  your  claim  for  services  in  collateral 
suits  touching  the  same  matter,  I  can  only  say  that  I  know 
nothing  of  their  value  or  nature.  Nor  are  there  any  funds 
under  my  control  out  of  which  I  would  be  authorized  to  pay 
the  fees  referred  to. 

"  I  therefore  suggest  that  you  lay  your  claim  before  an 
appropriate  committee  of  one  of  the  Houses  for  such  relief 
as  the  Legislature  may  see  proper  to  authorize. 

"lam,  sir,  very  respectfully,  your  obedient  servant, 

"  Jno.  Ireland." 

In  the  field  of  authorship  Mr.  Peeler  is  not  unknown. 
His  work  entitled  "  Law  and  Equity  as  Distinguished  and 
Enforced  in  the  Courts  of  the  United  States,"  displays 
great  research  and  has  received  very  high  commendation 
from  the  bench  and  bar. 

The  distinction  between  law  and  equity,  being  a  control- 
ling feature  in  the  administration  of  remedial  justice  in  the 
courts  of  the  United  States,  any  work  must  be  of  value  to 
the  profession,  which,  in  a  careful  and  painstaking  manner, 
presents  the  principles  upon  which  this  distinction  depends. 
In  this  book  the  author  discusses  fully  and  exhaustively 
common    law  and    equity  as  recognized   and    contradistin- 


A.  J.  PEELER.  481 

guished  in  the  Constitution  and  statutes  of  the  United 
States.  He  refers  to,  and  extracts  from,  cases  in  which 
the  distinction  between  law  and  equity  is  said  to  be  derived 
from  the  Constitution.  In  so  far  as  the  distinction  is 
recognized  by  statute,  there  is  a  full  discussion  of  all  such 
statutory  provisions. 

The  author  does  not  pretend  to  have  covered,  in  detail, 
the  whole  field  of  Federal  practice,  but  has  discussed,  with 
the  utmost  fullness,  the  relations  to  each  other  in  the  State 
and  Federal  courts.  Upon  the  general  principles  of  Fed- 
eral jurisdiction,  and  with  reference  to  the  jurisdiction  of 
the  respective  courts  of  the  United  States,  District,  Circuit 
and  Supreme,  this  treatise  is  fuller  in  its  discussion  of  ques- 
tions arising  under  the  statutes  of  the  United  States  and 
determined  by  the  decisions  of  the  courts  of  the  United 
States  than  any  other  existing  work. 

The  author  discusses,  with  the  fullest  possible  reference 
to  authoritative  decisions,  the  source  and  rules  of  legal  and 
equitable  rights,  whether  found  in  State  laws,  the  Constitu- 
tion of  the  United  States,  or  in  the  statute  of  the  United 
States. 

Chief  Justice  Waite,  of  the  Supreme  Court  of  the 
United  States,  says:  "lam  sure  the  book  will  be  found 
to  be  one  of  great  practical  usefulness.  The  practice  which 
now  prevails  generally  in  the  States  of  abolishing  the 
distinction  between  the  actions  at  law  and  suits  in  equity 
makes  it  the  more  important  that  the  profession  should 
have  at  hand  a  convenient  manual  for  their  use  in  conduct- 
ing proceedings  in  the  courts  of  the  United  States,  where 
that  distinction  must  be  maintained." 

Associate  Justice  Bradley  says:  *' I  anticipate  pleasure 
and  instruction  from  its  perusal." 

Associate  Justice  Blatchford  says  :  "A  separate  work 
on  this  subject  will  prove  useful,  and  the  care  and  discrim- 
ination you  have  exercised  in  your  labors  will  commend 
your  book  to  the  legal  profession." 

Associate  Justice  Mathews,  after  speaking  of  the  great 
practical  importance  of  the  subject,  says  :  "I  have  looked 
through  the  pages  of  your  volume  with  interest  and   care, 

31 


482  BENCH  AND  BAR  OF  TEXAS. 

and  feel  warranted  in  saying  that  you  have  discussed  the 
subject  in  the  light  of  judicial  decisions  with  great  fullness 
and  learning,  and,  I  believe  with  reliable  results." 

Judge  West,  of  the  Supreme  Court  of  Texas,  after  re- 
ferring to  the  difficulties  of  the  subject,  which  in  his  pro- 
fessional experience  he  learned  to  appreciate,  says  : 
"  There  is  no  treatise  or  book  upon  Fedeiai  practice,  that 
I  am  aware  of,  that  occupies  the  precise  place  on  this  sub- 
ject that  yours  is  designed  to  fill.  The  arrangement  of  the 
work  is  logical,  and,  in  your  successive  departments,  the 
foundation  and  sources  on  which  the  jurisdiction  of  the 
Federal  courts  rest,  both  as  courts  of  law  and  equity,  are 
naturally  and  gradually,  in  their  proper  order,  unfolded  and 
considered  in  a  most  satisfactory  manner.  I  regard  the 
work  as  one  every  practitioner  in  those  courts  should  have 
constantly  by  him.  You  have,  in  this  contribution  to  the 
literature  of  the  law,  well  paid  the  debt  which  every  lawyer 
owes  to  his  profession.  I  can  not  but  believe  that  the 
opinion  of  its  great  merit  that  I  have  here  expressed  will 
be  very  generally  indorsed  by  the  bar  of  the  United 
States." 

Besides  his  legal  authorship  Mr.  Peeler  has  contributed 
to  the  press  many  articles  on  questions  of  general  im- 
portance. He  is  the  author  of  the  various  letters  which 
attracted  much  attention  at  the  time  and  which  appeared  in 
the  Galveston  JSFews  just  before  the  meeting  of  the  Consti- 
tutional Convention  of  1876,  over  the  signature  of  "  Pub- 
lius."  These  letters  indicated  much  research  and  were 
designed  to  influence  the  public  mind  in  favor  of  a  thor- 
oughly efficient  and  well  paid  judiciary.  At  the  request  of 
the  State  Bar  Association  he  read  a  paper  before  that  body 
at  Houston,  entitled  "  The  right  of  land  owners  in  Texas 
to  protection  against  governmental  and  individual  aggres- 
sion in  the  use  and  enjoyment  of  their  property."  The 
"fence-cutting  troubles"  which  suggested  the  paper,  in- 
duced its  publication  throughout  the  State  and  intensified 
the  interest  with  which  it  was  generally  received  and  read. 

Mr.  Peeler  possesses  all  the  qualities  of  an  eminent  lawyer 
and  the  characteristics  of  a  good   man.     His  predominant 


A.  J.  PEELER.  483 

traits  are:  an  acute  perception,  sound  judgment,  un- 
swerving integrity  and  indomitable  resolution.  His  mind 
is  capacious,  active  and  peculiarly  practical,  is  habituated 
to  comprehensive  observation  and  steady  reflection,  and 
gathers  every  feature  of  fact  and  principle  that  forms 
an  ingredient  of  a  legal  proposition.  His  successful  man- 
agement of  the  subtle  and  abstruse  questions  involved  in 
the  many  important  cases  in  which  he  has  been  engaged 
strikingly  exemplify  his  genius  and  resources.  The  confi- 
dence reposed  in  his  ability,  the  expectations  engendered 
by  his  characteristics,  and  the  professional  honors  conferred 
upon  him,  have  met  with  a  responsive  fidelity  and  power 
which  have  gained  him  applause  and  reputation.  In  the 
rounded  bulk  of  prof essional  attainment,  moral  culture  and 
social  accomplishment  he  has  no  superior  at  the  Texas  bar, 
and  he  wears  the  badojes  of  his  merit  with  dignified  meek- 
ness  and  becoming  modesty. 


484  BENCH  AND  BAR  OF  TEXAS. 


WILLIAM   M.  Walton. 


There  are  but  few  men  whose  lives  jDresent  a  more  strik- 
ing exhibition  of  the  possibilities. of  energy  and  determina- 
tion to  attain  distinction  and  success  amid  difficulties 
apparently  insuperable,  than  that  of  the  subject  of  this 
sketch. 

William  M.  Walton  was  born  at  Canton,  Mississippi,  on 
the  17th  of  January,  1832.  His  early  education  was  con- 
fined to  the  old  field  schools  of  the  country,  and  later  in 
his  youth,  he  taught  the  primary  classes  in  these  schools  to 
pay  for  his  own  tuition  and  at  the  same  time  labored  on  a 
farm  during  the  mornings  and  evenings  and  on  Saturdays 
to  defray  the  charges  for  his  board  and  other  expenses. 
On  approaching  the  age  of  maturity  he  obtained  employ- 
ment as  a  deputy  in  the  office  of  the  circuit  clerk  of  the 
county,  and  having  saved  a  portion  of  his  small  compensa- 
tion, he  went  to  Charlotteville,  Virginia,  and  taught  in  the 
preparatory  school  there  in  order  to  enable  him  at  the  same 
time  to  receive  instruction  in  the  University  of  Virginia 
which  he  attended  during  the  sessions  of  1849  and  1850. 
Returning  to  Mississippi  in  the  spring  of  1851,  he  began 
the  study  of  law  in  the  office  of  Cothran  &  George  at 
Carrollton,  the  latter  being  at  present  a  United  States  Sen- 
ator from  that  State.  In  1852  he  was  prepared  to  enter 
the  bar,  but  being  yet  a  minor  he  obtained  his  license  in 
the  fall  of  that  year  from  Vice-Chancellor  Dickenson  at 
Carrollton  under  authority  of  a  special  act  of  the  Legisla- 
ture relievino;  him  of  his  legal  disabilities.  In  the  month 
of  February,  1853,  he  removed  to  Texas  and  located  at 
Austin  where  he  began  the  practice  of  his  profession  and 
has  ever  since  resided.  In  1862  he  entered  the  Confeder- 
ate army  as  a  private,  but  was  soon    afterwards    elected 


WILLIAM    M.   WALTON.  *  485 

lieutenant,  was  then  promoted  to  a  captaincy  and  was  then 
elected  major  of  his  regiment.  He  was  afterwards  offered 
the  command  of  a  regiment  of  cavalry  but  declined.  At 
the  close  of  the  war  he  quietly  resumed  his  practice.  In 
186G  he  was  elected  Attorney-General  of  the  State,  but  was 
removed  by  military  authority  in  1867,  as  one  of  the  ob- 
stacles in  the  path  of  reconstruction,  and  since  then  has  de- 
voted his  energies  and  aspirations  entirely  to  the  practice 
of  his  profession  which  he  loves  with  a  devotion  of  a  de- 
votee. 

Maj.  Walton  was  married  in  1854  to  Miss  Letitia  A. 
Watkins,  of  Carroll  County,  Mississippi,  whose  qualities  of 
excellence  have  doubtlessly  had  a  large  share  in  insjDiring 
his  efforts  and  directing  his  aspirations.  His  first  associa- 
tion in  the  practice  of  law  was  with  A.  J.  Hamilton  in  1854, 
to  which  F.  W.  Chandler  was  afterwards  admitted.  In 
1858  he  formed  a  copartnership  with  Judge  S.  G.  Sneed, 
which  afterwards  included  Thomas  E.  Sneed,  and  continued 
until  the  commencement  of  the  civil  war,  when  the  forum 
was  exchanged  for  the  field.  After  the  war  he  formed  a 
copartnership  with  W.  P.  de  Normandie,  which  continued 
until  1870,  when,  his  partner  having  retired  from  the  bar, 
he  associated  with  John  A.  Green,  and  in  1875  R.  J.  Hill 
was  admitted  a  member  of  the  firm.  In  1882  Mr.  Green 
withdrew  and  settled  in  San  Antonio,  and  in  1884  N.  S. 
Walton,  a  son  of  Muj.  Walton,  became  a  member  of  the 
firm  which  now  exists  under  the  name  of  Walton,  Hill  & 
Walton. 

He  is  a  profound  lawyer  and  a  man  of  superb  social 
qualities.  Generosity  and  magnanimity  are  prominent 
features  of  his  character,  and  he  is  a  true  patriot,  an  up- 
right citizen  and  a  faithful  friend ;  and  if  it  were  possible 
for  the  author  of  this  work  to  be  blinded  by  partiality  or 
personal  regards  as  to  a  true  insight  into  the  characters 
of  men  whose  traits  he  has  studied.  Major  Walton  is  one 
of  the  few  persons  whose  qualities  could  enchant  his  ob- 
servations. But  he  is  an  open-minded,  open-hearted  and 
open-handed  man,  and  the  seal  of  bis  character  pre- 
sents its  stamp  to  all  the  world  ;  upon  which  inscribed  in 


48()  *  BENCH    AND    BAR    OF    TEXAS. 

living  characters,  are  the  qualities  which  I  have  assigned 
him. 

As  a  lawyer  Major  Walton  has  few  superiors  in  the  State, 
and  while  attorney -general  evinced  a  broad  scope  of  legal 
view  amid  the  mass  of  novel  and  perplexing  questions  that 
during  that  time  presented  themselves  for  solution  to  his 
discernment  and  judgment,  which  characterized  him  as  one 
of  the  most  eminent  of  those  whose  legal  counsel  has 
guided  the  helm  of  the  State.  He  was  a  staunch  supporter 
of  Governor  Throckmorton  in  his  efforts  to  maintain  the 
rights  and  dignity  of  Texas  against  military  usurpation. 
But  ail  the  polished  arts  of  Nestor  could  not  stay  the  wrath 
of  Achilles,  and  Major  Walton  retired  from  the  political 
scene  with  the  verdict  of  popular  applause. 


JACOB    WAELDER.  487 


Jacob  Waelder, 


The  subject  of  this  sketch  is  a  native  of  Germany  and 
•was  born  in  the  town  of  Weisenheim,  in  the  Rhine  Provinces, 
on  the  17th  of  May,  1820.  His  father  was  a  jeweler,  and 
at  the  time  of  his  birth  his  native  town,  Weisenhiem,  was 
by  conquest  a  part  of  the  first  empire  of  France,  but  after 
the  downfall  of  Napoleon  I  it  formed  a  part  of  the  Rhine 
Provinces,  and  is  now  consolidated  with  the  German  Em- 
pire. Jacob  had  at  an  early  age  the  advantages  of  the  best 
schools  of  his  native  town  and  also  of  an  excellent  gymna- 
sium, which  he  attended  until  he  was  twelve  years  old.  His 
father  was  a  man  of  strong  republican  sympathies,  and,  being 
a  great  admirer  of  American  institutions,  emigrated  to  this 
country  in  1833,  and  settled  in  Pennsylvania.  Here  his  son 
continued  his  studies  in  a  good  school  until  he  reached  his  fif- 
teenth year ;  he  was  then  placed  in  a  printing  oflSce  and  two 
years  afterwards  was  employed  as  one  of  the  proof-readers 
in  the  Constitutional  Convention  of  Pennsylvania  convened 
in  1837.  In  1838  he  went  to  Germany,  where  he  remained 
over  two  years  and  completed  his  general  education.  In 
1841  he  returned  to  America  and  established  a  newspaper  at 
Wilkesbarre,  Pennsylvania,  of  which  he  was  the  proprietor 
and  editor ;  but  in  1842  began  the  study  of  law  at  that  place  in 
the  office  of  Hon.  L.  D.  Shoemaker,  and  remained  under  his 
supervision  until  he  was  prepared  for  the  bar.  In  1845  he 
obtained  his  license  and  entered  upon  the  practice  of  law, 
but  the  Mexican  War  was  at  that  time  engrao-inor  the  atten- 
tion  of  the  country,  and  Mr.  Waelder,  catching  the  inspi- 
ration of  military  enthusiasm,  enlisted  in  the  First  Regiment 
of  Pennsylvania  volunteers  and  served  throughout  that 
war.  He  was  elected  a  lieutenant  of  Company  I  of  that 
regiment,  which   having  embarked  at  New  Orleans  landed 


488  BENCH  AND  BAR  OF  TEXAS. 

below  Vera  Cruz  with  the  army  of  Gen.  Scott  and  partici- 
pated in  the  storming  of  that  city  and  the  castle  of  San  Juan 
d'Ulloa,  marched  with  Scott's  army  into  the  interior,  was 
then  moved  forward  first  to  Jalapa  and  then  to  the  castle  of 
Perote,  from  which  place  six  companies  of  the  regiment 
were  ordered  to  Pueblo,  where  the  army  was  then  concen- 
trating. Lieutenant  Waelder  was  appointed  adjutant  of  the 
battalion  composed  of  the  advancing  companies.  When  Gen. 
Scott  moved  upon  the  valley  of  Mexico  this  battalion,  with 
small  force  of  cavalry,  was  left  at  Pueblo  and  maintained  the 
siege  of  that  city  against  a  force  of  four  thousand  Mex- 
ican troops  which  were  joined  by  four  thousand  others  un- 
der General  Santa  Anna,  after  the  fall  of  the  City  of  Mexico, 
until  it  was  relieved  by  Gen.  Joseph  Lane  in  October,  1847. 
During  the  siege  he  was  appointed  acting  assistant  adjutant- 
general  by  Gen.  Childs  of  the  regular  army,  commanding 
the  garrison,  and  was  several  times  mentioned  for  good  con- 
duct in  the  reports  of  both  that  officer  and  the  colonel  of 
his  regiment. 

At  the  close  of  this  war  he  returned  to  the  practice  of 
his  profession  at  Wilkesbarre,  and  in  1850  was  elected  dis- 
trict attorney  of  Luzerne  County,  Pennsylvania,  and  also 
brigade  inspector  of  militia  ;  but  the  failing  health  of  his 
wife  caused  him  to  seek  a  home  in  a  milder  climate,  and 
resigning  these  offices,  in  1852  he  removed  to  Texas  and 
located  in  San  Antonio,  which  he  made  his  permanent  resi- 
dence, and  where  he  has  attained  eminent  distinction  as  a 
lawyer  and  accomplished  gentleman.  In  1855  he  was 
elected  a  member  of  the  Legislature  of  Texas  and  was  re- 
elected the  two  succeeding  terms. 

As  a  legislator  he  was  distinguished  for  his  close  and 
watchful  attention  of  the  interest  of  his  constituents,  and 
for  the  ardor  and  ability  with  which  he  advocated  every 
measure  calculated  to  promote  the  general  welfare  of  Texas. 
Since  his  last  term  in  the  Legislature,  in  1859,  he  has  never 
sought  any  political  preferment,  but  has  devoted  all  his 
energies  to  a  large  law  practice  acquired  and  sustained  by 
his  integrity,  ability  and  success. 

He  has  always  been  a  thorough  Democrat  and  during  the 


JACOB    WAELDER.  489 

war  was  a  major  in  the  Confederate  army  and  served  first  as 
general  enrolling  officer,  and  subsequently  as  assistant  pur- 
chasing commissary.  In  1875  he  was  a  member  of  the 
convention  which  framed  the  present  Constitution  of  Texas^, 
and  exerted  a  prominent  influence  in  the  formation  of  that 
instrument,  which  ended  his  political  career. 

Soon  after  this  war,  seeing  but  little  hopes  of  quietude 
and  the  peaceful  pursuit  of  his  profession  amid  the  dis- 
organization of  reconstruction,  Mr.  Waelder  removed  to  the 
city  of  New  York  and  practiced  one  year  in  Wall  Street 
in  copartnership  with  Mr.  M.  C.  B^iggs,  but  returned  to 
San  Antonio  in  February,  1868,  and  formed  a  copartner- 
ship with  Hon.  Columbus  Upson,  who  has  recently  been  a 
member  of  Congress  from  that  district,  and  this  copartner- 
ship still  continues. 

Mr.  Waelder  has  been  twice  married.  His  first  mar- 
riage was  with  Miss  Lizzie  Land,  of  Wilkesbarre,  Pennsyl- 
vania, in  1849  —  an  accomplished  lady,  who  died  in  1866  ; 
and  in  1870  he  was  married  to  Mrs.  Ada  Maverick,  for- 
merly Miss  Ada  Bradley,  of  San  Antonio,  and  this  excellent 
lady  has  inspired  him  with  much  of  that  spirit  of  good 
cheer  and  contentment  which  pervades  his  social  ethics  and 
stimulates  his  professional  exertions. 

As  a  lawyer  Mr.  Waelder  is  profound  and  accurate.  He 
thoroughly  comprehends  the  great  principles  of  law  estab- 
lished by  the  wisdom  of  ages  as  the  proper  measures  of 
right  and  justice  among  men,  and  his  sound  judgment  and 
indefatigable  research  enable  him  to  apply  these  with  a 
masterly  hand  to  the  affairs  of  society.  He  has  been 
especially  successful  in  the  application  of  new  .-md  important 
features  and  interpretations  in  civil  cases.  His  unabating 
industry  and  methodical  habits  lead  him  to  a  thorough 
understanding  of  his  cases,  and  identifying  himself  with 
the  interests  of  his  clients  in  all  meritorious  suits,  he  sees 
but  one  side  of  a  question  —  the  one  that  has  enlisted  his 
exertions. 

Among  the  most  notable  cases  in  which  he  has  been  en- 
gaged before  the  Supreme  Court  are  the  following:  I.  A. 
&  G.  W.  Paschal    et  al.  v.  W.   H.   Dangerfield  et  al.,  37 


490  BENCH  AND  BAR  OF  TEXAS. 

Texas,  273.  This  case  involved  the  question  of  presump- 
tions of  grants  and  the  subject  of  imperfect  titles  to  lands, 
and  the  legal  status  of  parties  between  whom  partition  has 
been  made  ;  that  they  must  sue  separately  to  recover  the 
possession  of  land  which  has  been  partitioned  and  to  per- 
fect their  title,  and  that  this  principle  applies  to  suits  both 
at  law  and  in  equity.  Acklin  v.  Paschal  et  al.  48  Texas, 
14  ;  Myers  v.  Dittmar,  Admr.,  47  Texas,  373  ;  Daumhauer 
V.  Devine,  51  Texas,  480;  French  et  al.  v.  Sternberg  et  al., 
52  Texas,  92;  Howard  v.  McKenzie  et  al.,  54  Texas,  171  ; 
Horan  v.  Frank,  51  Texas,  401  —  involving  the  nature  and 
character  of  a  mechanic's  lien.  Loonie  v.  Frank,  same,  51 
Texas,  406  ;  French  et  al.,  v.  Grenet,  57  Texas,  273.  Hec- 
tor V.  Knox,  Manning  v.  San  Antonio  Club,  N.  Y.  & 
Texas  Land  Co.  v.  Sanchez,  not  yet  reported. 

Mr.  Waelder  has  been  also  engaged  in  a  number  of  im- 
portant cases  in  the  Circuit  Court  of  the  United  States  — 
notably  the  San  Antonio  and  Bexar  County  bond  cases, 
and  is  engaged  in  a  case  of  considerable  importance,  which 
is  now  pending  in  the  Supreme  Court  of  the  United 
States  —  the  case  of  Sabanys  and  wife  v.  Maverick  et  al., 
in  which  he  represented  the  defendants  and  recovered 
judgment  for  them  in  the  Circuit  Couit.  This  case 
involves  some  of  the  best  business  and  residence  property 
in  San  Antonio,  comprising  eight  acres. 

The  case  of  Paschal  v.  Dano-erfield  was  in  litigation 
more  than  twenty -five  years,  and  in  the  last  effort  made  on 
motion  for  a  rehearing  before  the  Supreme  Court,  Judge 
Waelder,  as  counsel  for  the  appellants,  presented  the  fol- 
lowing observations,  in  reply  to  the  arguments  of  the 
counsel  for  the  appellees,  which  are  of  both  legal  and 
historical  value:  — 

"  We  had  hoped,  that  after  twenty-five  years  of  litigation, 
this  case  was  finally  disposed  of  by  the  action  of  this  court 
in  reversino;  the  iudo-ment  of  the  court  below  and  dismissins; 
the  cause.  There  was  no  reason  to  suppose,  that  after  the 
full  review  which  the  case  has  had  and  the  principles  enun- 
ciated in  the  opinion  of  the  court  —  an  opinion  which  ex- 
hausts the  subject  and  leaves  nothing  open  for  discussion, 


JACOB    WAELDER.  491 

relative  to  this  and  similar  titles  —  an  effort  would  be  made 
to  induce  the  court  to  reconsider  its  action  and  reverse  its 
own  judgment. 

"  The  effort  is  made,  however,  and  while  we  might  well 
leave  the  opinion  of  this  court  to  answer  the  present  argu- 
ment, we  will  nevertheless  offer  some  suggestions  relative 
to  the  '  new  departure,'  which  the  court  is  asked  to  take, 
and  which,  if  taken,  would  launch  not  only  this  case  upon 
a  sea  of  contest,  the  end  of  which  can  not  be  foreseen,  but 
would  open  a  source  of  new  litigation  in  various  parts  of 
the  State,  which  has  been  thought  closed  by  the  decision  of 
this  case  by  the  present  bench,  and  by  the  previous  decis- 
ions of  its  predecessors. 

"  The  counsel  may  well  say,  that  he  is  '  in  opposition  to 
every  adjudication  of  every  American  court  upon  this  sub- 
ject.' He  assumes  that  he  is  only  apparently  so,  because 
'  the  law  and  the  reason  of  the  law,'  as  understood  by 
him,  have  not  been  before  the  courts  for  consideration. 

"  We  take  a  different  view  of  the  subject,  believing  that 
the  very  point  here  raised  has  been  passed  upon  in  previous 
adjudications.  Thus  in  the  case  of  Paschal  v.  Perez,  7 
Texas,  348,  the  counsel  for  Perez  distinctly  announces  the 
proposition,  that  *  the  grant  passed  the  fee  under  the  laws 
of  Spain;'  and  'the  act  of  Cordero  passed  the  fee.' 
It  will  be  remembered,  that  the  concession  in  that  case 
emanated  from  the  same  military  chief  and  governor  of 
Coahuila,  ad  interim  of  Texas  ;  was  made  at  the  same  place 
and  about  the  same  time  as  the  one  now  under  considera- 
tion ;  the  language  of  one  is  the  language  of  the  other,  and 
in  both  instances  the  parties  to  whom  the  concessions  were 
made,  are  referred  to  the  same  Intendency  for  confirmation. 
The  counsel  of  Perez  endeavoring  to  show,  that  '  the 
authority  of  Cordero  is  beyond  a  question  ;'  refers  to  vari- 
ous decisions  of  the  Supreme  Court  of  the  United  States, 
none  of  which,  although  a  cursory  reading  may  have  mis- 
led, sustain  the  position  assumed.  Thus  in  the  case  of 
Delassus  v.  The  United  States,  '  the  concession  was  made 
in  regular  form  on  the  1st  of  April,  1795,  by  Zenon  Imdean, 
Lieutenant-Governor   of  the   western   part  of   Illinois,    in 


492  BENCH  AND  BAR  OF  TEXAS. 

which  the  land  lay,  by  special  order  of  the  Baron  de 
Carondelet,  Governor-General  of  the  province  ;  given  in 
consequence  of  a  contract  entered  into  by  De  Luzieres 
with  the  government  for  the  supply  of  lead.'  In  deliver- 
ing the  opinion  of  the  court,  Chief  Justice  Marshall  says, 
that  'by  the  royal  order  of  1774,  the  power  of  granting 
lands,  which  had  been  vested  in  the  Intendente  by  an  order 
of  1768,  was  revested  in  the  civil  and  military  governors  of 
the  provinces,  who  retained  it  until  1798.' 

*'  '  The  concession  is  unconditional,'  said  the  court,  and 
it  was  sustained  as  title.  But  while  this  was  done  the  court 
clearly  points  to  the  change  of  regulation  in  1798,  under 
which  a  different  conclusion  would  have  been  arrived  at  and 
a  different  decision  made. 

"  In  truth,  i.n  all  of  the  cases  in  which  grants  made  by  the 
government  of  Spain  have  been  sustained,  these  grants 
were  made  by  persons  duly  authorized  and  depending  on  no 
conditions  which  had  not  been  performed  — they  were  abso- 
lute grants,  made  by  competent  authority,  and  were  hence 
held  valid,  as  they  should  have  been. 

"  The  whole  subject  is  fully  reviewed  by  Mr.  Chief  Jus- 
tice Hemphill,  in  the  case  of  Paschal  v.  Perez,  and  the  con- 
clusion arrived  at  that  the  title  of  Perez  was  inchoate  and 
imperfect,  and  that  an  imperfect  title,  emanating  from  a 
former,  and  unrecognized  by  the  existing,  government, 
forms  no  foundation  for  an  action,  and  can  have  no  stand- 
ing in  a  judicial  tribunal. 

"  So  in  the  case  of  Menard's  Heirs  v.  Massey,  the  Su- 
preme Court  of  the  United  States,  after  reviewing  and 
re-examining  the  cases  previously  decided  by  that  court, 
arrived  at  precisely  the  same  conclusion,  saying :  '  From 
the  first  act,  passed  in  1805,  Congress  has  never  allowed  to 
these  claims  (imperfect  titles)  any  standing  other  than  that 
of  mere  orders  of  survey,  and  promises  to  give  title;  and 
which  promises  addressed  themselves  to  the  sovereign 
power  in  its  political  and  legislative  capacity,  and  which 
must  act  before  the  courts  of  justice  could  interfere  and 
protect  the  claims.     And  so  this  court  has  uniformly  held.' 

"  It  will  be  remembered  that,  in  the  case  last  mentioned, 


JACOB   WAELDER.  493 

the  title  presented  was  one  substantially  the  same  as  the 
title  presented  in  this  case  and  that  relied  upon  in  Paschal 
V.  Perez.  And  the  court  held  it  to  be  —  as  this  court  has 
held  those  of  Perez  and  Cubier  —  inchoate  and  imperfect. 

"  Again,  in  the  language  of  Chief  Justice  Hemphill : 
'  Was  the  act  of  the  Governor  (Cordero)  final,  or  was  it 
under  the  control  of  the  Intendant,  depending  for  its 
validity  upon  its  confirmation  ?  '  Under  the  law  then  in 
force,  as  understood  by  the  court  and  by  Cordero  himself, 
it  is  distinctly  enunciated  that  such  titles  were  not  valid 
without  confirmation  by  the  political  authorities,  and  that 
at  that  time  the  power  to  confer  absolute  titles  or  grants  to 
lands  was  vested  in  the  Intendant. 

"We  might  make  further  extracts  from  the  same  case, 
but  the  familiarity  of  the  court  with  its  conclusions  and  rea- 
soning makes  it  unnecessary. 

"The  argument  of  the  appellees'  counsel  endeavors  to 
maintain,  that  after  the  24th  day  of  August,  1770  (should 
be  1774),  the  political  and  militarj'  Governors  of  provinces 
had  the  right  of  granting  and  distributing  Royal  lands. 

"  This  is  probably  true,  so  far  as  the  provinces  of  Louisi- 
ana and  West  Florida  were  concerned,  but  only  as  to  those 
provinces.  At  least  so  it  would  seem  from  the  communica- 
tion addressed  to  the  Intendant  of  Louisiana  (Moralez)  on 
the  22d  of  October,  1798,  and  the  royal  order  addressed  to 
Gazoso  de  Lamos,  Governor  of  Louisiana,  on  the  same  day. 
It  was  also  so  regarded  by  the  Supreme  Court  of  the  United 
States  in  the  case  of  U.  S.  v.  Moore,  12  How.  219. 

"  But  it  is  equally  true,  that  so  far  as  the  power  had  been 
vested  in  the  Governors,  it  was  recalled  by  that  very  order, 
which  reads  as  follows  :  — 

"  '  The  King  has  resolved,  for  the  sake  of  the  better  and 
more  exact  observance  of  the  eighty-first  article  of  the  Royal 
Ordinance  for  Intendants  of  New  Spain  (not  the  province 
of  Louisiana  alone),  that  the  exclusive  faculty  of  grantin<y 
lands  of  every  class,  shall  be  restored  to  the  Intendnacy  of 
that  province,  free  from  the  interference  of  any  other  au- 
thority in  the  proceedings  as  established  by  law  (evidently 
the  Regulations  of  1754),  consequently  the  power  hitherto 


494  BENCH  AND  BAR  OF  TEXAS. 

residing  in  the  government  to  those  effects,  is  abolished 
and  suppressed,  being  transferred  to  the  Intendancy  for 
the  future.'     (2  White's  Rec.  477,  478.) 

"On  the  same  day  —  October  22,  1798  —  a  substantial 
copy  of  this  order  was  transmitted  to  Morales,  the  Intend- 
ant,  for  his  guidance.     (2  White's  Rec.  245.) 

"Now,  this  order  refers  to  the  thirty-first  article  of  the 
regulations  of  1754,  and  is  made  for  its  better  observance 
in  the  province  of  Louisiana.  Hence,  it  would  seem  that 
in  that  province  the  article  mentioned  had  never  been  in 
force,  or  that  it  had  been  recalled,  or  had  not  been  observed 
as  it  should  have  been.  The  article  read  thus:  '  The 
Intendants  shall  also  be  the  exclusive  judges  of  the  causes 
and  questions  that  may  arise  in  the  district  of  their  provinces, 
about  the  sale,  composition  and  grant  of  royal  lands, 
and  of  seigniory,  it  being  required  of  their  possessors,  and 
of  those  who  pretend  to  new  grants  of  them,  to  produce 
their  rights,  and  institute  their  claims  before  the  same  In- 
tendants,' etc.     (2  White's  Rec.  69.) 

"  Again,  if  the  same  relaxation  of  the  eighty-first  article 
of  the  regulations  1754  had  occurred  in  the  other  provinces 
of  New  Spain,  then  the  practice  was  also  '  abolished  and 
suppressed  '  in  such  other  provinces  by  the  same  order  of 
1798.  There  is  nothing  from  which  relaxation  can  be  in- 
ferred, but  the  order  seems  intended  to  correct  any  abuse 
or  practice  in  that  regard,  for  it  expressly  refers  to  the  In- 
tendants of  New  Spain,  and  not  to  him  of  Louisiana  alone, 
and  declares  that  it  is  given  for  the  better  and  more  exact 
observance  of  the  eighty-first  article  by  the  Intendants, 
transferring  the  power  to  them  for  the  future. 

"  It  seems  that  on  the  24th  of  November,  1735,  a  royal 
decree  was  issued,  requiring  all  persons  who  would  enter 
upon  the  lands  in  the  provinces,  to  apply  to  the  king  in 
person  ( 2  White  ,62),  and  that  in  order  to  do  away  with  this 
inconvenience,  the  ordinance  of  1754  was  established,  by 
the  eightj'-first  article  of  which,  as  we  have  said  before,  the 
power  to  grant  lands  was  vested  in  the  Intendants  of  the 
provinces,  which  were  established  by  the  same  ordinance  — 
one  of  the  Intendancies  being  located  at  the  City  of  San 


JACOB    WAELDER.  495 

Luis  Potosi.  Then  the  Intendar.cy  of  San  Luis  Potosi  was 
governed  by  the  ordinance  establishing  it,  and  all  grants  of 
land  within  its  limits,  or  confirmations  of  imperfect  titles, 
must,  under  those  regulations,  have  emanated  from  it. 

"Regulations,  such  as  those  issued  bv  Morales  in  1799, 
may  or  may  not  have  been  made  by  the  Intendant  of  San 
Luis  Potosi.  Whether  there  were  or  not,  does  not  appear 
to  be  definitely  known.  We  admit,  however,  that  the 
ordinance  of  1754  was  binding  upon  him,  and  that  if  a 
different  practice  had  afterwards  prevailed,  that  ordinance 
was  fully  restored  and  the  power  to  make  grants  re-vested 
by  the  order  of  1798.  Whether  the  regulations  of  1805,  to 
to  which  Governor  Cordero  refers  in  directing  Mrs.  Cubier 
to  present  her  title  to  the  Intendant  of  San  Luis  Potosi  for 
confirmation,  contains  provisions  similar  to  those  of  Morales, 
we  are  not  informed,  though  the  only  inference  that  can  be 
drawn  from  that  direction  is,  that  there  were  such  regula- 
tions, or,  in  the  language  of  Chief  Justice  Hemphill:  '  So 
far  as  we  are  informed  of  the  laws  then  in  force,  they 
were  not  misunderstood,  but  correctly  interpreted  by  the 
Governor.  The  Intendant,  in  the  language  of  the  ordi- 
nance, is  the  exclusive  judge  of  causes  and  questions  arising 
about  the  sale,  composition,  or  grant  of  lands.' 

"We  maintain,  then,  that  in  Coahuila  and  Texas,  they  did 
not  have  such  regulations  as  those  of  Morales.  They  cer- 
tainly had  those  of  1754,  which  are  all-sufficient.  That 
they  had  no  treaties  with  the  United  States  we  freely  eon- 
cede;  but  that  fact  rather  weakens  than  strengthens  this 
case. 

"  Nor  is  it  claimed  that  the  royal  order  of  1798,  the  regu- 
lations of  Morales,  or  the  ordinance  of  1754,  had  any  extra- 
territorial force.  The  principle  we  contend  for,  and  which 
has  been  established  and  re-affirmed  by  this  court,  and  all 
courts  where  the  same  question  has  arisen,  falls  within  the 
ordinance,  the  order  and  the  regulation  under  it ;  and,  it 
seems  to  us,  that  when  the  counsel  for  the  appellees  con- 
cedes, as  he  does,  the  legal  effect  of  the  action  of  Morales, 
he  gives  up  the  whole  controversy. 

"  He  does  the  same  when  he  says  that  he  is  '  strongly  for- 


496  BENCH  AND  BAR  OF  TEXAS. 

tified  by  the  universally  accepted  doctrine,  that  a  public 
officer  exercising  certain  powers  pertaining  to  his  office,  is 
presumed  to  be  possessed  of  the  power  until  the  contrary 
is  shown.'  For  when  he  invokes  and  applies  this  pre- 
sumption to  the  act  of  Cordero  in  making  the  imperfect 
title  to  Mrs.  Cubier,  he  must  take  it  with  its  entire  effect, 
viz. :  that  the  act  was  done  with  all  the  power  vested  in  him 
and  no  more.  And  that  power  fell  very  short  of  making 
an  absolute  grant,  or  passing  the  fee.  This  follows  as  a 
necessary  sequence,  without  calling  to  aid  that  other  doc- 
trine, that  the  officer  is  presumed  to  know  the  extent  of  his 
power.  Hence,  when  Cordero  made  the  imperfect  grant  in 
question  —  knowing  that  he  had  not  the  power  to  make  a 
full  grant  —  he  directed  his  grantee  to  repair  to  the  Intend- 
ant  for  its  confirmation. 

"  Whatever  ceremonies  may  have  been  performed  by 
Cordero,  or  by  the  alcalde  under  his  orders,  in  granting 
such  title  as  he  could  grant,  whether  such  ceremonies  were 
idle  or  otherwise,  can  not  affect  the  character  of  the  title. 
That  can  not  gain  strength  by  the  declaration  in  the  instru- 
ment, that  as  evidence  of  true  possession,  Mrs.  Cubier  was 
taken  by  the  hand  and  walked  over  the  two  leagues  ;  that 
she  plucked  grass,  washed  earth,  etc.,  etc.  Whether  any 
or  all  of  these  were  actually  done  or  not  —  although  all 
these  things  were  declared  to  have  been  performed  in  the 
name  of  the  king,  her  title  would,  nevertheless,  remain  an 
imperfect  one,  requiring  confirmation,  which  was  never 
obtained. 

"That  Mrs.  Cubier  could  have  defended  her  possession 
against  a  trespasser,  we  do  not  deny.  She  could  have  done 
the  same  under  a  resignardo,  which  gives  protection  to  a 
claimant  until  a  survey  can  be  ordered,  or  until  the  title  of 
possession  issued  by  an  authorized  commission.  So  she 
could  under  a  lease;  same  under  a  naked  possession,  though 
it  might  not  have  been  lawful  at  its  inception. 

"  Counsel  complains  that  this  is  called  an  Amparo.  Now, 
an  Amparo  is  given  to  one  in  possession,  and  secures  him 
in  that  possession ;  when  issued  to  a  claimant,  it  protects 
him  in  his  claim.     In  what  is  the  title,  presented  in  this 


JACOB    WAELDER.  497 

case,  different?  It  amounts,  at  best,  to  an  incipient,  in- 
choate or  imperfect  title  —  which  is  conceded,  by  the  coun- 
sel, to  be  its  character —  though  he  mfikes  the  concession 
only  for  the  sake  of  the  argument.  But  he  argues  himself 
into  a  wrong  conclusion.  He  contends  that  it  would  re- 
quire an  act  of  the  sovereighty,  assuming  the  possession,  or 
the  manifestation  of  a  desire  to  do  so,  while  it  is  held  in  aU 
the  adjudicated  cases,  that  the  title  remains  in  the  sover- 
eighty of  the  soil  until  by  some  act  of  the  political  author- 
ities, they  have  parted  with  it. 

"  There  is  one  view  of  this  case,  which  we  will  present  for 
what  it  may  be  worth.  Cordero  issues  the  imperfect  title 
to  Mrs.  Cubier  as  the  Governor  of  Coahuila,  though  he 
represents  himself  also  as  Governor  ad  interim  of  Texas. 
This  might  raise  a  question  as  to  his  authority  so  to  repre- 
sent himself;  for  it  is  a  historical  fact,  that  Coahuila  and 
Texas  were  not  united  until  the  adoption  of  the  Constitu- 
tion of  1824. 

"  However  Texas  may  have  been  regarded  by  the  king  and 
people  of  Spain,  there  are  some  scraps  of  history  in  con- 
nection with  its  occupation  and  first  settlement,  from  which 
it  mio;ht  well  be  inferred,  that  the  reo;ulations  m.ide  for  the 
government  of  Louisiana  and  Florida  would  be  more  ap- 
plicable to  Texas  than  any  of  the  other  Spanish  provinces 
now  constituting  Mexico. 

"Thus,  for  instance,  the  first  European  visitors  to  the 
shores  of  Texas  were  a  colony  of  French  emigrants  led  by 
La  Salle,  who  landed  in  Matagorda  Bay,  and  erected  a  fort 
(Fort  St.  Louis)  on  the  La  Vaca.  He  was  murdered  in 
1687.  In  1689  Capt,  De  Leon,  a  Spanish  ofiicer,  was  dis- 
patched to  the  La  Vaca  to  hunt  out  the  French.  In  1691 
a  Spanish  Governor  of  the  region  was  appointed,  but  in  1693, 
owing  to  the  hostility  of  the  Indians  and  other  causes,  the 
settlement  was  abandoned.  The  Spaniards  at  that  time  had 
settlements  at  El  Paso  and  at  San  Juan  Bautista,  both  on 
the  right  bank  of  the  Rio  Grande,  but  both  now  within  the 
limits  of  Texas.  In  1714  the  French  again  attempted  a 
settlement  within  its  limits,  and  Crogat,  to  whom  Louis 
XIV.  had  granted  the  whole  of  Louisiana,  sent  an  expe- 

32 


498  BENCH  AND  BAR  OF  TEXAS. 

dition,  which  penetrated  from  the  Sabine  to  the  Kio 
Grande. 

"  Efforts  were  made  by  both  France  and  Spain,  with  varied 
success,  to  hold  the  territory,  until  in  1763  the  feud  was 
finally  terminated  by  the  cession  of  Louisiana  by  France  to 
Spain.  When,  in  1803,  Spain  re-ceded  Louisiana  to  France, 
the  latter  ceded  it  to  the  United  States,  and  'as  there  had 
been  no  well  defined  boundary  between  Louisiana  and  the 
Spanish  possessions  west  of  it,  a  controversy  at  once  en- 
sued between  Spain  and  the  United  States,'  the  latter 
claiming  to  the  Rio  Grande.  This  controversy  continued 
until  1819,  when  in  the  treaty  for  the  cession  of  Florida 
the  country  west  of  the  Sabine  was  guaranteed  to  Spain. 
How  distasteful  this  treaty  was  to  the  people  of  the  Western 
and  Southern  States  of  the  Union,  is  shown  by  subsequent 
history  —  by  the  invasion  gotten  up  in  those  States. 

"  It  will  be  remembered  that  this  claim  of  the  United 
States  to  the  Rio  Grande  was  much  discussed  about  the  be- 
ginning and  during  the  war  with  Mexico,  and  one  of  the 
reasons  why  the  annexation  of  Texas  was  justified — or 
rather  advocated  —  was  that  Texas  in  reality  was  a  portion 
of  Louisiana. 

From  this  part  of  our  early  history,  it  appears  that  Spain 
herself  did  not  obtain  a  clear,  undisputed  title  to  the  Terri- 
tory of  Texas  until  its  cession  of  Florida  in  1816.  And 
from  this  it  may  also  be  inferred,  that  although  Spain  nom- 
inally or  really  valued  the  Province  it  did  so  in  connection 
with  its  possession  of  Louisiana,  and  after  the  cession  of 
the  latter,  with  Florida,  until  finally  its  claim  to  Texas  was 
confirmed,  its  title  acknowledged,  and  the  Province  was 
united  with  Coahuila  in  1824,  as  before  stated. 

"  If  that  part  of  our  history  le<ids  to  the  inference  we 
suggest,  then  the  regulations  of  1798  were  clearly  applicable 
to  Texas.  If,  on  the  other  hand,  our  inference  should  be 
thought  to  be  incorrect,  the  royal  regulations  of  1754, 
and  all  that  has  been  said  in  relation  to  that  part  of  the 
case,  necessarily  lead  us  to  the  same  conclusion :  that  the 
title  of  Mrs.  Cubier  was  imperfect,  and  as  such  can  have  no 
standing  in  a  judicial  tribunal ;  that  it  was  never  confirmed, 


JACOB    WAELDER.  499 

as  the  law  of  the  time  required,  and  that,  therefore,  no  re- 
covery can  be  had  under  it. 

"  While  we  may,  and  do,  give  due  credit  to  the  ingenious 
and  able  argument  of  the  counsel,  and  while  we  appreciate 
his  diffidence  in  asking  the  court  to  take  the  '  new  depart- 
ure'  heretofore  alluded  to,  we  must  insist  that  we  have 
failed  to  discover  any  good  reason  why  the  change  desired 
&.hould  be  made. 

'*  Believing  that  the  court  will  adhere  to  its  decision  we 
deem  it  unnecessary — perhaps  improper  —  to  say  anything 
in  regard  to  the  '  other  bill  of  exceptions  '  alluded  to  by  the 
counsel  for  the  appellees. 

"  In  relation  to  the  defendants  who  have  not  appealed,  we 
will  simply  say  —  lest  it  might  be  thought  there  was  slight 
error  in  the  judgment  of  this  court  —  that  the  defendants, 
against  whom  the  judgment  of  the  District  Court  was  ren- 
dered, were  Geo.  W.  Paschal,  the  estate  of  I.  A.  Paschal, 
and  Gideon  Lee.  These  have  all  appealed.  There  were 
several  other  defendants  —  settlers  on  the  land  —  ao-ainst 
whom  there  was  no  judgment,  but  a  judgment  in  their 
favor,  upon  the  plea  of  the  statute  of  limitations.  These, 
of  course,  did  not  appeal.  And  as  the  cause  is  dismissed 
and  they  can  not  be  troubled  again  by  new  litigation,  there 
is  no  reason  why  the  judgment  should  be  changed  as  to 
them." 


iJOO  BENCH    AND    BAR    Or    TEXAS. 


A.  W.  TERRELL. 


Alexander  Watkins  Terrell,  one  of  the  most  gifted 
lawyers  of  the  Texas  bar,  was  born  in  Patrick  County, 
Virginia,  on  the  3d  of  November,  1829.  His  father, 
Christopher  Joseph  Terrell,  a  descendant  of  an  old  Eng- 
lish family,  was  also  a  native  of  Virginia,  and  was  a 
distinguished  physician.  His  mother  was  a  daughter  of 
Joseph  Kennedy,  of  Augusta  County,  Virginia,  and  was  of 
German  ancestry.  In  1832  the  family  immigrated  to  Cooper 
County,  Missouri,  where  the  subject  of  this  sketch  was 
reared  and  received  his  primary  education.  He  completed 
u  thorough  course  of  studies  in  the  University  of  Missouri, 
and  in  1847  began  the  study  of  law  at  Boonville,  in  the 
office  of  Judge  Peyton  R,  Hayden,  one  of  the  most  emi- 
nent jurists  in  the  State. 

He  was  admitted  to  the  bar  in  1849,  and  began  the  prac- 
tice of  law  at  St.  Joseph,  where  he  pursued  his  profession 
with  distinguished  success  and  rising  reputation  until  the 
year  1852,  when  his  genius  and  ambition  seeking  the  most 
ample  field  and  "satisfied  with  nothing  but  the  most  inviting 
possibilities,  he  removed  to  Austin,  Texas,  the  destined  seat 
of  a  great  empire,  which  spread  before  him  its  unbounded 
scope  of  enterprise  and  its  spacious  lap  of  wealth  and  pros- 
perity. At  Austin  he  immediately  entered  upon  a  brilliant 
career  which  has  been  interrupted  only  by  the  disorganizing 
throes  of  revolution  and  the  absorbing  energies  of  civil 
war.  In  1857  he  was  elected  judge  of  the  Second  Judicial 
District,  and  in  consequence  of  the  trammels  of  a  judicial 
office,  though  a  strong  Southerner  in  soul  and  sentiment,  he 
took  no  active  part  in  the  immediate  political  measures 
which  accomplished  secession  and  precipitated  the  war.  In 
18G3,  at  the  expiration  of  his  term  of  office,  he  entered 


A.  W.  TERRELL.  501 

the  Confederate  arm}'  as  lieutenant-colonel  of  the  Thirty- 
fourth  Regiment  of  Texas  cavalry,  but  was  soon  afterwards 
promoted  to  the  rank  of  colonel,  and  commanded  that 
regiment  until  near  the  close  of  the  war.  He  led  his  com- 
mand in  the  battles  of  Mansfield,  Pleasant  Hill,  Jenkins' 
Ferry,  and  other  engagements  during  the  campaign  against 
General  Banks.  He  was  a  most  efficient  officer,  and  in 
1865  was  promoted  by  General  E.  Kirby  Smith  to  the 
rank  of  brigadier-general  and  was  in  command  of  a  brigade 
at  the  termination  of  hostilities. 

When  the  war  ceased  he  settled  at  Houston  and  resumed 
the  practice  of  law  ;  but  in  1867  retired  to  his  plantation 
in  Robinson  County,  and  during  several  years  devoted  his 
attention  to  his  planting  interests.  In  1871  he  returned  to 
Austin,  and  has  since  that  time  devoted  himself  to  his  pro- 
fession and  to  the  duties  of  a  legislator  and  reporter  of  the 
Supreme  Court. 

In  1875  he  was  a  member  of  the  State  Senate,  and  was 
distinguished  for  his  zealous  and  able  efforts  to  purge  the 
laws  of  Texas  of  the  degrading  features  introduced  durins: 
the  reconstruction  regime,  and  to  purify  the  jurisprudence 
of  the  State.  With  this  view,  his  first  act  was  to  effect  a 
radical  improvement  in  the  jury  system,  by  requiring  of 
jurors  in  both  civil  and  criminal  cases,  the  qualification  of 
being  able  to  read  and  Avrite.  This  law,  which  is  still  in 
force  in  Texas,  has  greatly  curtailed  the  evil  of  professional 
jurors,  closed  the  avenues  of  corruption  which  converged 
upon  the  jury  rooms,  and  clothed  the  attainment  of  justice, 
at  least  with  the  purity  of  intelligence  ;  and  it  would  be 
well  for  the  best  interest  of  society  if  all  the  other  States 
of  the  South  were  to  follow  the  example.  He  was  ao-ain  a 
member  of  the  Senate  in  1879,  and  was  efficient  in  procurins: 
the  adoption  of  provisions  for  the  erection  of  the  new  capital. 

In  conjunction  with  his  partner.  Judge  A.  S.  Walker,  he 
reported  thirteen  volumes  of  the  decisions  of  the  Supreme 
Court  of  Texas  — from  the  thirty-eighth  to  the  fifty-first 
volume  inclusive,  and  has  since  then  reported  individually 
eleven  volumes,  including  the  fift3'-second  and  sixtv-second 
volumes.  He  is  at  present  chiefly  engaged  in  the  duties  of 
State  Reporter. 


502  BENCH  AND  BAR  OF  TEXAS. 

Judge  Terrell  is  a  lawyer  of  fine  ability,  and  in  intellect- 
ual capacity  and  literary  attainment  has  no  superior  at  the 
Texas  bar.  He  is  a  fluent  speaker,  and  his  culture  extends 
to  all  the  departments  of  science.  His  analysis  of  the  deci- 
sions of  the  Supreme  Court  indicates  scholarly  ingenuity  and  ^ 
professional  excellence,  and  his  legal  and  legislative  accom- 
plishments have  adorned  the  jurisprudence  of  the  State. 
His  speech  on  private  corporations,  delivered  before  the 
literary  societies  of  the  University  of  Missouri  in  June, 
1885,  presents  an  interesting  exposition  of  the  history, 
character  and  tendencies  of  these  legalized  aggregations  of 
wealth  and  power  — that  they  demoralize  their  owners, 
breed  public  corruption,  and  are  inimical  to  independent 
labor  and  a  free  ballot.  While  the  discussion  of  these  char- 
acteristics of  private  corporations  has  been  hackneyed  by 
law  writers,  politicians  and  writers  on  political  economy. 
Judge  Terrell  has  clothed  them  with  an  application  to  the 
present  state  of  society  which  has  attracted  public  atten- 
tion and  should  excite  public  interest  —  not  that  interest 
which  is  expressed  in  a  hostility  to  the  existence  of 
institutions  which  have  developed  the  country,  rescued 
Texas  from  being  the  refuge  and  hiding  place  of  every  des- 
perado and  criminal  that  could  escape  from  the  older  States, 
and  planted  a  village  in  every  inviting  valley,  and  a  home 
on  every  productive  hillside  ;  but  that  interest  which  awak- 
ens and  asserts  individual  rights,  and  a  watchful  guard 
against  any  real  tendencies  which  may  threaten  their  detri- 
ment. This  done,  and  politics  will  be  found  to  be  the  only 
influence  that  can  endanger  the  liberties  of  a  free  and  intel- 
ligent people. 


GEORGE    GOLDTHWAITE.  503 


George  Goldthwaite. 


The  subject  of  this  sketch  was  born  in  Spartansburg  dis- 
trict, South  Carolina,  on  the  27th  of  May,  1830.  His 
father,  Robert  H.  Goldthwaite,  was  a  native  of  Massachu- 
setts, but  removed  to  South  Carolina  at  an  early  age  and 
became  an  able  lawyer  at  the  bar  of  that  State.  In  the 
latter  part  of  his  life  he  retired  from  the  practice  and  de- 
voted himself  to  the  duties  of  a  planter,  on  a  farm  in  Mont- 
gomery County,  Alabama.  Here  George  Goldthwaite  was 
reared  until  he  was  fourteen  years  of  age,  and  at  the  death 
of  his  father  which  occurred  about  this  period,  the  family 
being  in  reduced  circumstances,  he  found  himself  thrown 
upon  his  own  resources  and  dependent  upon  his  own  exer- 
tions to  obtain  an  education. 

But  undaunted  by  his  prospects  and  the  difficulties  which 
surrounded  him  and  armed  with  an  unswerving  determina- 
tion he  sought  the  first  avenue  which  presented  to  him  the 
path  of  independence  and  success,  and  in  1844  entered  upon 
the  duties  of  a  clerk  in  a  mercantile  house  in  the  city  of 
Montgomery.  He  pursued  this  occupation,  devoting  his 
leisure  hours  to  miscellaneous  reading  and  to  the  study  of 
law  until  the  year  1853,  when  he  immigrated  to  Texas  and 
located  at  Houston,  when  he  again  entered  a  mercantile 
house  as  book-keeper,  and  served  in  this  capacity  four 
years,  continuing  in  the  meantime  to  read  law  ds  the  duties 
of  his  position  afforded  him  opportunity.  During  this 
time  he  was  married  to  Miss  Louisa  Stone,  daughter  of  a 
Presbyterian  minister,  and  gained  the  inspiration  and  en- 
couragement of  an  accomplished  and  noble  companion  in 
his  efforts  to  obtain  a  place  and  a  name  among  men.  In 
1858  he  was  admitted  to  the  bar  and  spent  several  months 
traveling  through  the  State  in  search  of  a  promising  location 


504  BEXCH  AND  BAR  OF  TEXAS. 

for  the  j)ursuit  of  his  profession,  but  finally  returned  to 
Houston,  where  he  began  his  practice  and  continues  to  re- 
side. 

As  a  lawyer  Mr.  Goldthwaite  occupies  an  eminent  posi- 
tion at  the  bar  of  Texas  — a  place  fully  commensurate  with 
the  hopes  and  aspirations  of  his  youth.  Trained  from  his 
early  youth  in  the  school  of  self-reliance  his  virtues  were 
shaped  by  the  mould  of  circumspection  and  invigorated  by 
the  demands  of  necessity.  His  early  life  was  stamped 
with  a  fixed  purpose  and  his  ambition  inspired  indefatigable 
effort.  With  a  strong  and  resolute  hand  he  tore  away  the 
obstacles  that  lay  in  his  path  and  pushed  onward  to  a  noble 
destiny.  Devoted  to  the  duties  of  his  profession,  he  has 
never  held  or  sought  political  or  military  preferment, 
though  he  has  always  been  a  thorough  Democrat,  and 
deeply  imbued  with  the  views  and  sentiments  which  dic- 
tated the  policy  of  the  Southern  people  in  their  efforts  to 
free  themselves  from  the  hostile  and  aggressive  elements  of 
the  Northern  portion  of  the  Union. 

After  the  war  Mr.  Goldthwaite  resumed  the  pratice  of 
law  at  Houston.  He  had  before  that  time  been  employed 
as  the  regular  attorney  for  the  Texas  Central  Railroad 
Company,  and  has  since  then  devoted  himself  chiefly  to  its 
service.  He  has,  therefore,  been  engaged  in  many  of  the 
most  important  railroad  cases  that  have  come  before  the 
courts  of  the  State,  in  which  he  has  been  remarkably  suc- 
cessful, and  is  considered  one  of  the  best  corporation 
lawyers  in  the  country. 

He  is  a  man  of  staunch  integrity,  of  conscientious  pur- 
pose and  ardent  convictions,  and  his  talent,  energy  and 
perseverance  have  gained  him  the  reputation  of  being  ot»e 
of  the  most  invincible  practitioners  at  the  Texas  bar. 


s-^ 


jYlc^^c^  'kiM..^  ^.^^^^ 


N. W.  BATTLE.  505 


N.    W.    BATTLE. 


Nicholas  William  Battle  was  born  in  Warren  County, 
Georgia,  on  the  1st  day  of  January,  1820.  His  father  was 
a  Methodist  clergyman  of  reputation,  who  removed  to 
Georgia,  when  a  young  man,  from  Nash  County,  North 
Carolina,  where  his  ancestors,  who  were  of  French  origin, 
settled  prior  to  the  war  of  the  Revolution,  one  of  whom 
was  captain  of  a  company  in  the  Continental  army.  The 
subject  of  this  sketch  enjoyed  liberal  advantages  in  the  best 
country  schools  of  Monroe  County,  Georgia,  in  which  he 
was  reared,  and  in  1842  graduated  at  William  and  Mary 
College,  in  Virginia,  where  he  also  took  the  course  of  law. 
Returning  to  Georgia  he  continued  his  legal  studies  under 
the  supervision  of  Judge  A.  M.  Spae,  an  able  jurist,  and 
in  1844  was  admitted  to  the  bar  at  Macon,  and  entered 
upon  his  practice  at  Forsyth.  He  soon  attained  an  enviable 
position  at  the  bar,  which  increased  his  aspirations  and 
stimulated  his  ambition  for  professional  achievements. 
The  prospects  of  Texas  charmed  his  view,  and  in  1850  he 
removed  to  Waco,  which  has  ever  since  been  his  home. 

The  Texas  courts  thronged  with  litigation  of  land 
matters,  and  criminal  cases  arising  from  a  spirit  of  specu- 
lation and  the  heterogeneous  society  of  a  new  and  rapidly 
populating  country,  afforded  him  an  ample  field,  and  he 
soon  acquired  a  large  practice,  and  stepped  into  the  line  of 
professional  promotion.  In  1854  he  was  elected  district 
attorney,  and  was  re-elected  in  1856.  In  1858  he  was 
elected  judge  of  the  district,  but  resigned  his  position  in 
1862  and  entered  the  Confederate  army  as  lieutenant- 
colonel  of  the  Thirtieth  Regiment  of  Texas  cavalry,  and 
served  in  the  field  during  the  remaining  period  of  the  war. 
He  was  an  excellent  disciplinarian  and  a  gallant  officer  who 


506  BENCH  AND  BAR  OF  TEXAS. 

enjoyed  the  highest  respect  of  his  superiors  and  invoked 
on  more  than  one  occasion  their  complimentary  official 
notice. 

At  the  close  of  the  war  Judge  Battle  returned  to  Waco 
and  resumed  his  practice.  He  had  always  been  a  State's 
rights  Democrat  of  the  straightest  school,  a  strict  construc- 
tionist of  the  Constitution,  and  a  nullifier,  and  while  in  the 
main  he  adhered  to  his  old  Democratic  faith,  he  promptly 
accepted  the  arbitration  of  the  sword  and  the  new  features 
which  it  had  wrought  upon  the  constitution.  He  gave  up 
the  old  Federal  Union  with  the  reserved  rights  of  the 
States,  and  accepted  the  permanent  supremacy  of  the 
national  government  with  its  consolidated  power,  which  he 
deemed  revolutionary  to  attempt  to  evade. 

In  1874  he  was  appointed  by  that  excellent  judge  of 
official  competency  and  merit,  Governor  Coke,  judge  of  the 
criminal  district  comprising  the  jurisdictions  of  Waco, 
Marlin  and  Calvert,  which  expired  on  the  adoption  of  the 
Constitution  of  1876.  In  this  capacity  he  was  highly 
efficient  in  enforcing  order  and  suppressing  crime  in  the 
midst  of  an  abnormal  lawlessness  arising  from  the  unsettled 
state  of  society  during  that  period.  It  is  said  that  during 
the  time  of  his  incumbency  of  the  district  bench  combina- 
tions existed  in  some  of  the  counties  composing  his  district 
of  a  character  which  threatened  to  overawe  the  court  and 
thwart  the  course  of  justice,  and  that  he  met  the  threats 
and  menaces  of  mob  law  with  as  much  stern  defiance  and 
indignation  as  did  Lord  Mansfield  when,  in  response  to 
similar  efforts  to  control  his  opinion  in  the  case  of  Rex  v. 
Wilkes,  that  great  judge  took  occasion  to  make  the  follow- 
ino-  illustrious  observations  from  the  bench :  — 

"  I  pass  over  the  many  anonymous  letters  I  have  received. 
Those  in  print  are  public,  and  some  of  them  have  been 
brought  judicially  before  the  court.  Whoever  the  writers 
are  they  take  the  wrong  way.  I  will  do  m}^  duty  unawed. 
What  am  I  to  fear?  What  mendax  infamia  from  i\iG press 
which  daily  coins  false  facts  and  false  motives.  The  lies  of 
calumny  carry  no  terror  for  me.  I  trust  that  my  temper 
of  mind,  and  the  color  and  conduct  of  my  life,  have  given 


N.  W.  BATTLE.  507 

me  a  suit  of  armor  aoraiiist  these  arrows.  If  durins:  this 
king's  reign,  I  ever  supported  his  government  and  assisted 
his  measures,  I  have  done  it  without  any  other  reward  than 
the  consciousness  of  doing  what  I  thought  right.  If  I  have 
ever  opposed  them,  I  have  done  it  upon  the  points  them- 
selves, without  mixing  m  party  oy  faction^  and  without  any 
collateral  views.  I  honor  the  king  and  respect  the  people  ; 
but  many  things  acquired  by  the  favor  of  either,  are,  in  my 
account,  objects  not  worth  ambition.  I  wish  popularity, 
but  it  is  that  popularity  which  follows,  not  that  which  is  run 
after.  It  is  that  popularity  which,  sooner  or  later,  never 
fails  to  do  justice  to  the  pursuit  of  noble  ends  by  noble  means. 
I  will  not  do  that  which  conscience  tells  me  is  lorong,  upon 
this  occasion,  to  gain  the  huzzas  of  thousands,  or  the  daily 
praise  of  all  the  papers  which  come  from  the  press.  I  will 
not  avoid  doing  what  I  think  is  right,  though  it  should  draw 
on  me  the  whole  artillery  of  libels,  all  that  falsehood  and 
malice  can  invent,  or  the  credulity  of  a  deluded  populace 
can  swallow.  I  can  say  with  a  great  magistrate,  upon  an 
occasion  and  under  circumstances  not  unlike,  '  ego  hoc  am- 
ino semper  fai,  ut  invidiam  virtute  partam  gloriam,  non 
invidiam,  putarem.'  The  last  end  that  can  come  to  any 
man  never  comes  too  soon,  if  he  falls  in  support  of  the 
law  and  liberty  of  his  country,  for  liberty  is  synonymous  to 
law  and  government." 

"  They,  the  leaders  of  mobocracy,"  said  Judge  Battle, 
"  they  would  make  a  Jeffries  of  me  !  They  would  trans- 
form the  courts  of  a  peaceful  State  into  the  bloody  assizes 
of  two  centuries  ago.  But  I  defy  their  threats  on  the  one 
hand  and  scorn  their  blandishments  on  the  other,  as  I  de- 
spise the  cowards  who  do  their  beck  and  bidding  !  " 

In  spite  of  every  obstacle  and  adverse  influence  he  fol- 
lowed the  track  of  the  law  with  unswerving  steps,  left  to 
his  successor  an  unspotted  ermine  and  resumed  the  practice 
of  his  profession  without  means  and  with  a  briefless  docket ; 
but  the  same  energy,  perseverance  and  principles  of  in- 
tegrity which  had  gained  him  distinction  as  an  advocate 
and    eminence   as  a  judge  soon  restored  his    practice  and 


508  BENCH  AND  BAR  OF  TEXAS. 

crowned  his  career  with  additional  success,  and  his  repu- 
tation as  a  lawyer  continues  in  a  brilliant  ascendency. 

While  on  the  bench  Judge  Battle  decided  many  important 
and  interesting  questions,  one  of  which  was  the  novel  is- 
sue that  a  free  negro  could  not  under  the  laws  of 
Texas  contract  for  the  sale  of  himself  into  slavery,  and  that 
all  such  contracts  were  ab  initio  null  and  void.  This  opinion 
was  affirmed  by  the  Supreme  Court  in  Westbrook  v.  The 
State,  reported  in  24  Texas,  563.  He  has  also  been  en- 
gaged as  counsel  in  some  of  the  most  important  cases  that 
have  come  before  the  courts,  notably  that  of  Spurlock  v. 
Sullivan,  36  Texas,  511,  in  which  are  discussed  the  rights 
of  intervenors  and  the  question  of  equitable  intervention, 
and  the  unreported  case  of  Hough  v.  Barret,  involving  the 
title  to  three  leagues  of  land  in  the  Brazos  valley,  which 
pended  nineteen  years  in  the  District  Court  and  which  he 
finally  gained. 

Judge  Battle  was  married  in  1846  to  Miss  Mary  Ann 
Cabaniss,  daughter  of  Hon.  E.  G.  Cabaniss,  an  eminent 
jurist  of  Georgia,  who  was  elected  to  Congress  soon  after 
the  surrender,  but  was  with  the  other  Southern  members 
refused  his  seat,  in  view  of  the  new  and  arbitrary  system  of 
reconstruction  which  Congress  had  at  that  time  determined 
upon.  To  the  noble  qualities  and  superior  accomplish- 
ments of  this  lady  he  attributes  largely  his  professional 
eminence  and  success  in  life. 

While  it  can  not  be  said  that  Judge  Battle  is  endowed 
with  any  extraordinary  gifts  or  special  brilliancy  of  genius, 
he  possesses  in  a  high  degree  the  qualities  indispensable  to 
the  attainment  of  eminence  in  any  sphere  of  life,  and  with- 
out which  genius  is  a  delusive  and  oftentimes  an  unfortunate 
possession.  He  posesses  a  capacity  for  cautious,  pains- 
taking and  indefatigable  labor,  which,  guided  by  intellectual 
vigor,  a  sound  judgment  and  a  conscientious  purpose,  al- 
ways dives  to  the  depth  of  investigation,  and  never  fails  to 
bring  up  the  gems  of  truth  and  justice  from  its  bottom. 
Hence  his  briefs  are  always  searching  and  well  argued.  As 
a  judge  he  was  noted  for  promptness  and    precision,  his 


N.  W.   BATTLE.  509 

plain,  earnest  and  cogent  style  of  oratory,  which  makes 
him  formidable  as  an  advocate  before  a  jury,  gave  to  his 
charges  and  decisions  upon  the  bench  a  clearness  of  reason 
and  directness  of  force  which  always  met  with  a  compre- 
hending response  and  concurrence  in  the  mind  of  common 
sense  and  conscientious  conviction,  while  his  personal  amia- 
bility and  suavity  of  manner  lenified  the  sternness  of  the 

juclge. 

Judge  Battle  is  a  Baptist  in  his  communion,  ibut  is  one  of 
that  better  class  of  denominational  sectarians  who  holds  the 
faith  with  all  Christians  "in  unity  of  spirit,"  and  in  the 
bonds  of  fellowship. 


510  BENCH  AND  BAR  OF  TEXAS. 


Marcus  d.  Herring. 


The  subject  of  this  sketch  was  born  in  Holmes  County, 
Mississippi,  on  the  11th  of  October,  1828.  His  early 
associations  were  chiefly  with  the  Choctaw  Indians  who  were 
devoted  friends  to  his  father  and,  with  the  exception  of 
two  or  three  white  families,  were  his  only  neighbors.  In 
1836  his  father  moved  to  Carrollton  and  was  the  first  cir- 
cuit court  clerk  of  Carroll  County.  He  held  this  position 
for  many  years  and  afterwards  served  several  terms  in  the 
Legislature  of  Mississippi,  the  House  of  Representatives 
and  in  the  Senate.  M.  D.  Herring  began  his  education 
in  the  office  with  his  father,  in  which  he  early  learned 
the  clerical  business  of  the  courts  and  was  inspired  with  the 
ambition  to  become  a  successful  lawyer.  In  1840,  when 
but  twelve  years  of  age,  he  witnessed  the  proceedings  of  an 
important  and  exciting  criminal  trial,  which  quickened  his 
aspirations  and  he  determined  to  apply  himself  at  once  to  pre- 
paration for  the  bar,  and  from  that  time  to  the  present  has 
devoted  all  his  energies  and  talents  to  his  chosen  profession, 
in  which  success  has  been  the  sole  aim  of  his  ambition. 
His  father  was  equally  desirous  that  he  should  be  a  physi- 
cian, and  offered  him  the  most  flattering  inducements  to 
adopt  the  study  of  medicine  ;  but  he  was  a  boy  of  self-will 
and  resolution,  and  nothing  could  induce  him  to  swerve  from 
his  determination,  or  mar  the  prospects  which  he  pictured 
for  himself  at  the  bar  ;  and  he  argued  his  convictions  so  earn- 
estly that  his  father  finally  yielded  to  his  desires,  and  placed 
him  at  school  at  Judson  Institute  in  Carroll  County,  under 
the  tuition  of  Reuben  Nason,  a  friend  and  classmate  of 
Sergeant  S.  Prentiss,  and  who  came  with  him  to  Mississippi. 
In  1845,  he  entered  the  junior  class  in  Centenary  College, 
at  Jackson,  Louisiana,    and  was  prepared  to  graduate  in 


^^^-^mLhUJ}^ 


MARCUS    D.  HERRING.  511 

1847  ;  but  a  majority  of  his  class  having  been  thrown  back 
one  year,  the  minority,  of  which  he  was  one,  through  sym- 
pathy for  their  fellow-classmates,  declined  graduation. 
During  the  last  year  of  his  collegiate  course  he  read  law 
under  the  president  of  the  college,  David  O.  Shattuck,  for- 
merly a  distinguished  judge  in  Mississippi. 

On  leaving  college,  and  finding  his  means  exhausted,  he 
returned  to  Carroll  County  and  taught  school  to  enable  him 
to  continue  the  study  of  law  and  acquire  a  thorough  prepa- 
ration for  the  bar.  In  1848  he  was  admitted  to  the  practice 
of  his  profession  at  Carrollton,  receiving  his  license  from 
Chancellor  Cocke,  and  soon  afterwards  removed  to  Shreve- 
port,  Louisiana,  where  after  fitting  up  a  law  office  in  the  most 
meagre  and  primitive  style,  he  had  but  five  dollars  remain- 
ing, and  no  friend  or  acquaintance  in  the  city.  In  this  con- 
dition, the  proprietor  of  the  hotel  at  which  he  was  boarding 
demanded  that  he  should  pay  a  month's  board  in  advance. 
With  these  terms  he  could  not  comply,  but  the  landlord  was 
inexorable,  and  giving  him  his  last  five  dollars  which  settled 
his  bill  to  that  date,  with  feelings  of  indignation  and 
without  his  dinner,  he  started  in  search  of  more  generous 
quarters.  On  crossing  the  street  he  met  a  physician,  who 
occupied  an  adjoining  office,  and  told  him  of  his  situation 
and  the  circumstances  that  had  befallen  him.  The  kind 
doctor  became  at  once  interested  in  the  young  stranger  and 
escorted  him  to  a  boarding-house  kept  by  a  sister  of  the 
famous  James  Bowie,  between  which  and  the  hotel  existed 
:i  strong  and  avowed  rivalry.  He  told  her  of  his  poverty- 
-stricken condition  and  of  his  treatment  by  the  hotel-keeper. 
She  was  both  amused  and  pleased  by  his  narrative  of  the 
circumstances  and  received  him  as  a  boarder  on  trust ;  but 
the  next  week,  through  the  kindness  of  Col.  Thomas  S. 
Land,  who  had  served  in  the  Legislature  of  Mississippi  with 
his  father,  and  who  was  subsequently  one  of  the  judges  of 
the  Supreme  Court  of  Louisiana,  he  received  a  retaining 
fee  of  seventy-five  dollars,  which  he  immediately  paid  to 
his  generous  and  noble-hearted  landlady  as  the  first  install- 
ment   for    his    board.     Col.   Land    continued   to    interest 


512  BENCH  AND  BAR  OF  TEXAS. 

himself  in  his  welfare  and  afterwards  admitted  him  to  co- 
partnership. 

In  the  fall  of  1850,  Mr.  Herring's  health  having  failed 
at  Shreveport,  he  started  on  horseback  to  Cameron,  Texas, 
in  search  of  a  new  and  more  salubrious  locality,  and  dur- 
ing his  journey  one  of  those  circumstances  occurred  which, 
though  slight  and  apparently  without  indicative  importance, 
often  changes  the  tide  in  the  affairs  of  men  and  fixes  human 
destiny.  While  passing  through  Shelby  County  his  horse 
fell  through  a  bridge,  causing  him  a  serious  injury  which 
delayed  him  some  time  at  Shelbyville;  and  during  his  con- 
finement at  that  place  some  persons  who  had  been  arrested 
upon  the  charge  of  murder  were  brought  to  his  hotel.  He 
accepted  a  retainer  for  their  defense  at  the  examining  trial, 
and  engaged  to  defend  them  at  the  ensuing  term  of  the 
District  Court.  This  circumstance  caused  him  to  locate  at 
Shelbyville,  where  he  practiced  until  the  spring  of  1854, 
when  he  settled  at  Waco,  which  has  since  then  been  his 
permanent  home.  While  at  Shelbyville  he  extended  his 
practice  throughout  the  old  Fifth  District,  which  at  that 
time  contained  some  of  the  most  eminent  lawyers  the  Texas 
bar  has  ever  produced,  and  he  often  met  as  assisting  or  op- 
posing counsel  J.  Pinckney  Henderson,  O.  M.  Roberts,  Wm. 
B.  Ochiltree,  Thomas  J.  Rusk,  Thomas  J.  Jennings,  Richard 
S.  Walker  and  other  lawyers  of  distinction.  This  field 
would  have  been  a  severe  and  exacting  test  of  any  quality 
of  genius,  but  Mr.  Herring  was  equal  to  the  demands  which 
the  conditions  of  success  made  upon  him,  he  stemmed  the 
tide  of  talent  that  swept  around  him  and  gradually  rose 
to  distinction. 

When  the  Civil  War  began  in  1861  he  enlisted  as  a  private 
soldier  in  one  of  the  first  volunteer  companies  raised  in 
Texas  for  the  Confederate  service.  He  was  soon  after- 
wards elected  captain  and  served  three  years  and  nine 
months  in  the  field,  chiefly  in  the  Trans-Mississippi  depart- 
ment. At  the  close  of  the  war  he  quietly  but  vigorously 
resumed  his  practice  at  Waco,  which  he  has  since  extended 
to  all  parts  of  the   State,  particularly  in  land  litigation  and 


MARCUS   D.  HERRING.  513 

criminal  cases,  in  which  he  has  been  peculiarly  successful. 
In  1854  he  was  employed  on  the  part  of  the  defendants  in 
the  celebrated  suit  of  Lasseley  v.  Eliphas  et  al.,  in  the 
United  States  District  Court  at  Austin.  In  consequence  of 
the  interestedness  of  the  presiding  judge,  John  C.  Watrous, 
the  venue  was  changed  to  New  Orleans  where  the  case 
was  argued  by  Mr.  Herring,  as  leading  counsel,  before 
Judges  Campbell  and  McCaleb.  The  plaintiffs  obtained 
judgment,  and  an  appeal  was  taken  to  the  Supreme  Court 
of  the  United  States  in  which,  upon  bills  of  exceptions 
prepared  by  Mr.  Herring,  it  was  argued  by  Mr.  Judah 
P.  Benjamin.  This  case  is  reported  in  20  Howard,  264, 
and  it  is  evident  that,  while  Mr.  Benjamin  was  a  great  civil 
law  and  commercial  lawyer,  he  knew  nothing  of  the  pecu- 
liar system  of  Texas  land  laws  and  did  not  fully  compre- 
hend the  character  of  the  exceptions  ;  and  had  Mr.  Herring 
who  had  fought  the  suit  from  its  inception  been  employed 
at  Washington  the  study  of  the  features  of  the  case  sug- 
gests the  probability  of  a  different  result. 

He  has  been  employed  generally  for  the  defense  in  many 
important  and  exciting  criminal  trials.  Soon  after  the  war 
he  prosecuted  Colonel  Meyers,  his  son  David  and  Wash. 
Handy  for  the  murder  of  William  Milican  at  Bryan.  The 
case  hinged  upon  the  evidence  of  a  son  and  brother,  Allen 
Meyers,  whose  testimony  in  chief  acquitted  the  defendants, 
but  upon  a  searching  cross-examination  by  Mr.  Herring 
they  were  convicted.  This  was  the  first  conviction  for 
murder  that  had  ever  been  effected  in  Brazos  County. 
Afterwards  John  Milican,  brother  of  William,  killed  Meyers, 
and  before  he  could  be  tried  he  was  killed  at  night  in  the 
streets  of  Milican.  Mrs.  Balldridge,  a  daughter  of  Meyers, 
and  his  son,  a  lad  of  thirteen  years,  were  indicted  for  Mili- 
can's  murder  and  were  vigorously  prosecuted  by  Colonel 
Hutchinson,  of  Houston,  and  other  able  lawyers,  but  Mr. 
Herring  effected  their  acquittal.  Early  one  Sunday  morn- 
ing in  the  spring  of  1870,  Eugene  Carter,  a  bright  boy  of 
fourteen  years,  and  step-son  of  General  Thomas  Harrison, 
was  found  murdered  in  his  bed  in  a  store-house  in  Waco,  in 
which  he  was  employed.     There  was  a  light  burning  in  his 


514  BENCH  AND  BAR  OF  TEXAS. 

room,  and  it  was  evident  that  it  was  the  work  of  a  burglar. 
There  was  no  evidence  to  identify  the  murderer,  but  the 
whole  country  was  upon  the  alert  for  the  least  suspicion, 
and  about  three  years  afterwards  a  man  named  Hunnicutt 
was  arrested  in  Hill  County  and  charged  with  the  crime. 
He  was  stationed  at  Waco  as  the  captain  of  Governor 
Davis'  police  at  the  time  of  the  deed,  and  as  circumstances 
somewhat  pointed  to  him,  public  opinion  was  pronounced 
as  to  his  guilt.  The  trial  lasted  eleven  days  and  a  verdict 
of  guilty  was  rendered  against  the  prisoner ;  but  there  was 
great  conflict  in  the  testimony  and  a  new  trial  was  granted. 
When  this  took  place  Mr.  Herring,  who  did  not  believe 
the  man  guilty,  spoke  an  entire  day  in  his  defense.  He 
was  acquitted  and  his  innocence  was  afterwards  univers- 
ally conceded. 

Among  the  most  important  reported  crimmal  cases'  in 
which  Mr.  Herring  was  leadins;  counsel  for  the  defense  are 
James  v.  The  State,  3  Court  of  Appeals,  437,  and  Sinims  v. 
The  State,  10  Court  of  Appeals,  132.  Those  parties  were 
twice  convicted  of  murder,  and  both  finally  acquitted, 
chiefly  through  his  strenuous  exertions  in  their  behalf. 

"While  Mr.  Herring  has  been  highly  successful,  and  has 
acquired  a  handsome  competency  by  his  practice,  he  values 
his  reputation  far  above  all  his  other  successes,  which  is  to 
him  a  source  of  pleasure  and  pride  as  well  as  profit.  He  is 
a  kind-hearted,  generous  and  sympathetic  man,  and  seems 
to  value  his  attainments  and  influence  chiefly  for  the  oppor- 
tunities they  afford  him  for  doing  good.  He  is  conse- 
quently held  in  high  esteem  by  his  neighbors,  as  well  as  by 
his  brother  members  of  the  bar.  Hon. -D.  A.  Kelley,  an 
old  acquaintance  of  Mr.  Herring,  says  of  him:  "He  has 
always  borne  the  reputation  of  a  successful  lawyer,  equally 
qualified  in  every  department  of  the  profession  ;  whetlier  in 
the  civil  or  criminal  sphere,  whether  in  the  ofl5ce  or  forum, 
whether  in  court  or  out  of  court,  he  stands  in  the  front  rank 
of  his  profession  as  an  able  and  experienced  lawyer. 

"  He  is  possessed  of  wonderful  energy,  perseverance  and 
will  power,  working  day  and  night  in  the  cause  which  he  has 
espoused,  and  has  frequently  been  the  means  of  uprooting 
and  overturning  a  strong  current  of  adverse  public  opinion 


MARCUS    D.  HERRENG.  515 

and  set  it  coursing  in  the  opposite  direction.  His  energy 
never  flags,  and  no  adverse  circumstance,  no  mutter  how 
forbidding  or  apparently  discouraging,  seems  ever  to  break 
his  aim  or  thwart  his  purpose.  He  pursues  his  conceived 
duty  with  all  the  ardor  of  a  devotee,  equally  regardless  of 
opposition,  whether  fostered  by  public  or  private  opinion, 

"  He  is  a  speaker  of  considerable  magnetic  power,  and 
always  has  something  good  to  say,  which  he  clothes  in  chaste, 
forcible  and  flowing  language,  and  is  equally  entertaining 
in  private  as  a  conversationalist  as  he  is  in  public  as  a 
speaker. 

"  He  has  a  heart  full  of  sympathy  and  charity,  always  ready 
to  encourage  those  who  are  afilicted  or  in  distress,  and 
always  listens  with  patience  and  credulity  to  the  story  of 
those  who  have  been  wronged  or  who  have  encountered  mis- 
fortune ;  so  much  so  that  he  has  often  suffered  pecuniarily 
at  the  hands  of  the  deceitful  and  unworthy. 

"  No  widow  or  orphan  ever  applied  to  him  without  relief 
and  no  poor  person  was  ever  turned  away  because  of  his  in- 
ability to  secure  a  cash  retainer.  He  has  often  defended 
persons  charged  with  crime  without  the  hope  of  reward, 
having  been  imbued  and  impressed  with  the  story  of  their 
innocence." 

In  addition  to  these  sterling  personal  qualities  he  pos- 
sesses mental  traits  peculiarly  adapted  to  the  requirements 
of  his  profession,  which  he  has  cultivated  by  systematic 
training  and  close  application.  He  possesses  an  inquisitive 
and  highly  analytical  mind  and  keen  powers  of  perception, 
which  penetrate  the  depth  of  every  question  of  law  or  fact 
that  engages  his  attention.  He  is  consequently  always  pre- 
pared for  any  turn  which  a  case  may  take,  and  therefore 
fortified  against  surprise  or  novel  development. 

He  was  married  at  Waco  in  1856  to  Miss  Alice  G.  Doug- 
lass, a  lad}'  of  culture  and  the  most  amiable  qualities,  who 
has  been  to  him  a  faithful  helpmate  in  promoting  his  aspi- 
rations and  encouraging  his  endeavors.  He  is  a  zealous 
member  of  the  Baptist  Church,  and  an  enthusiastic  Mason, 
and  one  of  the  pionsers  of  the  Odd  Fellows'  fraternity  in 
Waco,  in  which  order  he  has  held  the  highest  honors  in  the 
State. 


516  BENCH  AND  BAR  OF  TEXAS. 


Charles  Stewart. 


Charles  Stewart  is  a  native  of  the  State  of  Tennessee, 
and  was  born  in  the  city  of  Memphis,  on  the  30th  of  May, 
1836.  His  father,  who  was  of  Scotch  origin,  was  a  native 
of  Culpeper  County,  Virginia,  and  was  by  trade  a  house 
carpenter;  but  he  was  a  man  of  great  intelligence,  remark- 
able especially  for  his  knowledge  of  political  history,  and 
being  a  forcible  and  fluent  speaker,  was  often  engaged  in 
discussing  the  political  questions  of  his  day,  especially  in 
advocacy  of  the  doctrines  of  the  Whig  party,  of  which  he 
was  an  ardent  supporter. 

Charles  Stewart  came  to  Texas  with  his  father,  who  set- 
tled in  Galveston  in  1845.  His  educational  opportunities  were 
only  such  as  were  afforded  by  a  private  school  in  the  coun- 
try; but  he  was  early  inspired  with  a  desire  and  determina- 
tion to  promote  his  condition  in  life,  and  having  inherited 
in  a  marked  degree  the  natural  gifts  of  his  father  in  fluency 
of  oratory  and  fondness  of  discussion,  he  directed  his 
aspirations  towards  the  former. 

In  1852  he  began  the  study  of  law  in  the  office  of  James 
W.  Henderson,  and  completed  his  preparation  for  the  bar 
under  the  supervision  of  Messrs.  Bullinger  &  Jones,  of 
Galveston.  In  1854,  when  not  yet  eighteen  years  of  age, 
he  was  licensed  by  the  Supreme  Court  and  began  the  prac- 
tice of  his  profession  at  Marlin,  where  he  soon  attained  a 
high  stand  at  the  bar,  and  such  a  degree  of  popular  esteem 
and  confidence,  that,  in  1856,  he  was  elected  district  attor- 
ney of  the  Thirteenth  Judicial  District,  and  was  re-elected 
in  1858,  as  a  just  recognition  of  his  efficiency. 

While  devoting  all  his  energies  to  the  duties  of  his  pro- 
fession and  official  station,  Mr.  Stewart  was  a  staunch  advo- 
cate of  Southern  views  in  regard  to  the   questions  which 


CHARLES    STEWART.  517 

jigitated  the  public  mind  at  that  period,  and  Avas  a  member 
of  the  convention  of  1861,  in  which  he  voted  for  the  ordi- 
nance that  withdrew  Texas  from  the  Federal  Union,  and 
sealed  the  rectitude  of  his  intentions  and  conscientious  views 
by  a  prompt  personal  acceptance  of  the  gan^e  of  battle. 
He  served  faithfully  during  the  war,  first  in  the  Tenth  Regi- 
ment of  Texas  infantry,  and  afterwards  in  Baylor's  Regiment 
of  cavalry,  and  at  its  close  as  promptly  accepted  the  inev- 
itable attributes  of  the  issue,  and  without  remorse  resumed 
the  duties  of  his  profession. 

In  1866  he  removed  to  Houston,  where  he  has  since  re- 
sided, and  of  which  he  was,  in  1874,  elected  city  attorney. 
He  was  chosen  to  represent  that  district  in  the  State  Senate 
in  the  Sixteenth  and  Seventeenth  Legislatures,  and  distin- 
guished himself  by  his  strenuous  and  able  efforts  in  the 
interest  of  free  public  education.  In  1882  he  was  elected 
to  the  Forty-eighth  Congress,  and  was  re-elected  to  the 
Forty-ninth  Congress  in  1884,  of  which  he  is  now  a  brill- 
iant and  rising  member.  His  report  from  the  Committee 
on  Foreign  Affairs,  in  the  Honse  of  Representatives  of  the 
Forty-eighth  Congress,  in  regard  to  commercial  relations 
with  South  and  Central  America  is  an  able  document,  and 
in  the  light  of  subsequent  and  present  events  highly  impor- 
tant and  interestinor.  Havinoj  submitted  a  substitute  bill 
embodying  the  views  of  his  committee  as  to  the  most  prac- 
tical method  of  promoting  their  relations,  Mr.  Stewart  pre- 
sented in  his  report  an  exhaustive  statistical  exhibit  of  the 
value  of  the  commerce  of  these  countries,  and  its  unequal 
distribution  between  the  United  States  and  other  countries, 
and  havinff  referred  to  the  statements  of  intellio-ent  travel- 
ers  that,  "  from  the  little  pin  with  which  the  lady  fastens 
her  ribbons  to  the  grand  piano  with  which  she  enlivens  and 
enchants  the  hearts  of  her  household ;  from  the  tiniest 
thread  and  tack,  and  tools  needed  in  the  mechanical  arts,  to 
the  largest  plows  and  harrows,  and  other  agricultural  imple- 
ments and  machines  required  on  the  farm  ;  the  wares  and 
fabrics,  light  groceries  and  delicacies  in  common  demand  ; 
the  drugs  and  medicines  in  the  shops  of  the  apothecaries  ; 
the  liquors  and  wines  of  the  saloons;   the  stationery  and 


518  BENCH  AND  BAR  OF  TEXAS. 

fancy  goods  of  the  book  stores  ;  the  furniture  in  the  parlors 
and  the  utensils  used  in  the  kitchens,  are  in  these  countries, 
with  rare  exceptions,  of  English,  German,  Spanish,  or 
Italian  manufacture,  and  yet  inferior  to  the  corresponding 
articles  of  American  make."    His  report  proceeds:  — 

"This  condition  of  thincrs  ouo;ht  to  be  chang^ed  at  the 
earliest  possible  moment ;  and  there  should  be  no  balance 
of  trade  against  us  in  our  commerce  with  these  countries, 
and  in  order  to  effect  such  u  chansre  in  our  commercial  rela- 
tions  with  Central  and  South  America,  the  committee  earn- 
estly recommends  the  adoption  of  the  substitute  herewith 
reported,  believing  that  it  will  serve  to  initiate  such  policies 
as  will  be  of  great  advantage,  not  only  to  the  people  of  this 
country,  but  to  the  inhabitants  of  Central  and  South 
America. 

"  Our  commercial  relations  with  Mexico  are  satisfactory. 
From  the  tabular  statement  herein  given  it  appears  that  the 
foreign  commerce  of  Mexico,  both  exports  and  imports, 
amounted  in  the  aggregate  during  the  past  year  to  the  sum 
of  $58,125,000,  and  that  nearly  one-half  of  this  commerce 
was  done  with  the  United  States.  It  also  appears  that  for 
the  year  ending  June  30,  1883,  that  with  Mexico  there  was 
a  balance  of  trade  in  our  favor  amounting  $7,021,000.  Our 
proximity  to  Mexico  has  had  much  to  do  with  building  up 
our  commerce  with  that  country  ;  but  much  more  is  due  to 
the  liberal  and  progressive  spirit  with  which  the  Mexican 
government  has  been  actuated  in  encouraging  and  protect- 
ing the  investments  of  American  capital. 

"Already  American  enterprise  is  actually  engaged  in  con- 
structing railways  in  Mexico,  and  to-day  one  may  go  from 
New  York,  all  the  wa}^  by  rail,  to  the  city  of  the  Montezumas. 
The  construction  of  these  reads  has  infused  new  life  and 
energy  into  Mexico,  and  her  rapid  increase  in  wealth  and 
material  prosperity  is  assured.  But  Mexico  reaps  not  all 
the  benefits  resulting  from  these  investments  of  American 
capital,  for  our  commerce  with  that  country  has  greatly 
increased  and  is  continually  enlarging. 

"Why  may  not  like  results  be  obtained  in  the  States  of 
Central  and  South  America  by  the  investment  of  American 


CHARLES    STEWART.  519 

capital  and  the  application  of  American  energy?  The  idea 
of  building  a  railway  from  the  United  States  to  the  Argen- 
tine Republic  is  somewhat  startling  to  those  who  have  never 
given  the  subject  a  thought,  but  a  little  reflection  will  con- 
vince any  one  that  no  insuperable  obstacle  is  in  the  way  of 
such  an  enterprise.  A  railroad  from  some  point  in  Texas,  or 
elsewhere  in  this  country  where  a  connection  is  formed  with 
the  railroad  system  of  the  United-  States  to  the  City  of 
Mexico,  and  thence  through  the  Republic  of  Mexico  and 
Central  America,  and  along  the  Isthmus  of  Darien,  passing 
east  of  the  Andes  through  South  America  to  the  Argentine 
Republic,  would  meet  with  but  few  natural  obstacles  in  the 
way  of  its  construction,  and  the  distance  will  not  exceed  six 
thousand  eight  hundred  miles,  and  may  be  shortened  to  six 
thousand  miles  by  commencing  its  construction  at  the  City 
of  Mexico,  where  it  will  connect  with  roads  already  built  or 
in  process  of  construction.  Distance  and  natural  obstacles 
have  never  thwarted  American  enterprise  in  the  construc- 
tion of  railways.  *  *  *  From  Gautemala  and  Honduras 
to  Chili  and  the  Argentine  Republic,  embracing  the  several 
independent  and  progressive  commonwealths  of  Salvador, 
Nicaragua,  Costa  Rica,  Colombia,  Venezuela,  Equador, 
Peru,  Bolivia,  Brazil,  Paraguay,  and  Uruguay,  the  conditions 
of  topography,  soil,  climate,  population,  productions,  and  all 
other  circumstances,  actual  and  prospective,  are  believed 
to  be  such  as  to  invite  and  fully  justify  the  construction  of 
the  great  line  of  railway  suggested  by  this  bill,  and  when  it 
is  constructed  our  commerce  will  be  enlarged  to  such  an 
extent  as  at  this  time  to  defy  anything  like  a  correct  estimate 
of  its  value  ;  and  then  we  will  be  in  a  position  to  say  to 
European  governments,  in  the  memorable  words  of  Presi- 
dent Monroe  :  '  That  we  should  consider  an  attempt  on 
their  part  to  extend  their  system  to  any  portion  of  this 
hemisphere  as  dangerous  to  our  peace  and  safety.'  " 

It  is  a  pity  that  our  legislation,  both  State  and  Federal, 
has  not  been  shaped  more  by  the  dictates  of  enterprise  and 
the  views  of  genius ;  but  the  spirit  of  progress  is  abroad 
in  the  land,  and  the  development  of  our  national  resources 
and  jidvantages  championed  by  such  men  as  Mr.  Stewart  in 


520  BENCH  AND  BAR  OF  TEXAS. 

Congress,  and  promoted  by  the  able  statesmen  who  now 
guide  the  helm  of  government,  will  assume  a  shape  and 
pace  commensurate  with  the  destinies  of  our  country,  and 
it  is  doubtless  but  a  question  of  time  when  a  railway  will 
connect  New  York  and  Chicago  with  Rio  de  Janeiro  and 
Buenos  Ayres. 

As  a  lawyer,  Mr.  Stewart  has  been  eminently  successful 
in  both  branches  of  the  profession,  and  has  been  engaged 
in  many  important  cases,  both  civil  and  criminal,  before 
the  Texas  courts.  Among  the  most  noted,  perhaps,  are 
The  State  v.  Walker  and  Black,  which  has  been  several 
times  before  the  Supreme  Court  as  well  as  before  the 
Court  of  Appeals,  and  the  case  of  The  State  v.  Grissom, 
which  has  been  before  the  Court  of  Appeals  twice.  He 
was  appointed  by  the  court  to  defend  a  negro  woman,  then 
a  slave,  charged  with  murder,  which  he  zealously  under- 
took, though  there  was  great  prejudice  against  her.  She 
was  convicted  and  sentenced  to  be  hanged,  but  in  the  midst 
of  severe  criticism  he  appealed  her  case,  and  she  was  finally 
acquitted.  It  was  the  case  of  Elizabeth  v.  The  State,  27 
Texas,  329.  His  briefs  were  argued  by  Judge  Hancock, 
who  attended  to  the  case  for  him  before  the  Supreme 
Court,  and  hence  Mr.  Stewart's  name  does  not  appear  in 
the  report  of  the  appeal.  The  most  interesting  case,  per- 
haps, in  which  he  has  been  engaged  was  that  of  The  State 
V.  O'Brien,  tried  before  the  Criminal  District  Court  of 
Harris  County  in  1876.  The  defendant  had  found  his 
wife,  a  beautiful  woman,  in  a  house  of  ill-fame,  and  upon 
her  refusing  to  leave  the  place,  he  deliberately  shot  her  to 
death.  The  defense  was  emotional  insanity,  and  the  de- 
fendant was  acquitted. 

He  is  thoroughly  familiar  with  the  Texas  land  system 
and  the  laws  of  corporations,  and  has  been  engaged  in 
many  important  suits  against  railroads,  as  well  as  in  land 
litigation.  He  has  been  associated  in  practice  with  several 
gentlemen  of  ability.  His  first  copartnership  was  with 
Thomas  P.  Aycock,  at  Martin,  in  1857,  which  continued 
until  his  removal  to  Houston  in  1866,  where  he  became 
associated  with  D.  U.  Barziza,  and  practiced  with  him  until 


CHARLES    STEWART.  521 

1874,  when  the  connection  was  dissolved  by  mutual  con- 
sent, and  Mr.  Stewart  formed  a  partnership  with  J.  B. 
Likens,  which  continued  until  the  death  of  the  latter  in 
1878.  He  then  received  G.  H.  Breaker  into  a  firm  with 
him,  which  continues  to  exist. 

Mr.  Stewart  was  married  at  Marlin  in  1860  to  Miss 
Rachel  Barry,  and,  like  most  men  who  have  achieved  em- 
inence and  success,' he  is  greatly  indebted  to  the  encourage- 
ment of  the  amiable  and  accomplished  lady  who  early 
shared  his  fortunes  and  shaped  his  aspirations.  In  1883 
he  was  made  Grand  Master  of  Masons  in  Texas,  and  is 
devoted  to  the  interests  of  the  fraternity.  In  social  life 
he  is  generous,  open  and  kind,  ready  and  jDrompt  to  render 
any  assistance  in  his  power  to  whomsoever  may  deserve  or 
need  it,  and  few  men  are  held  in  higher  esteem  by  the 
community  in  which  they  live. 


522  BENCH  AND  BAR  OF  TEXAS. 


ALEXANDER    WHITE. 


This  venerable  lawyer  was  born  in  Franklin,  Tennessee, 
on  the  16th  of"  October,  1816.  His  father  was  of  Scotch 
origin,  a  native  of  Jefferson  County,  Virginia,  and  a  dis- 
tinguished lawyer.  He  settled  in  Alabama  prior  to  the 
organization  of  the  State  government,  and  was  subsequently 
one  of  the  circuit  judges  who  composed  the  Supreme  Court 
of  the  State.  Alexander  White  was  reared  at  Court  land, 
Alabama,  where  he  early  enjoyed  the  advantages  of  good 
schools,  and  was  prepared  for  a  collegiate  course.  In  1833 
he  was  placed  in  Jackson  College,  and  was  afterwards  sent 
to  the  University  of  Nashville,  but  left  the  latter  institution 
in  1836,  when  in  his  senior  year,  and  joined  the  army  of 
General  Jackson,  then  engaged  in  the  Florida  War.  At 
the  close  of  the  campaign,  in  1837,  he  returned  to  Alabama 
and  located  at  Talladega,  where  he  immediately  began  the 
study  of  law,  and  so  vigorous  was  his  application  that  in 
one  year  he  was  admitted  to  the  bar.  He  began  his  prac- 
tice in  1838,  and  was  married  during  the  same  year  to 
Miss  Eliza  J.  L.  McCauley,  of  Benton  County,  Alabama. 
He  soon  acquired  a  good  practice,  but  yielding  to  the  allure- 
ments of  the  opportunity  which  his  ability  and  popularity 
opened  to  him,  he  turned  his  attention  to  politics,  and,  in 
1851,  was  elected  to  represent  the  Seventh  Alabama  District 
in  Congress,  in  which  he  served  two  years,  and  in  1856  re- 
moved to  Selma,  Alabama,  where  his  reputation  placed  him 
mimediately  at  the  head  of  the  bar.  In  1860  he  was  an 
elector  on  the  Douglas  ticket  for  the  Mobile  District,  and 
made  an  active  and  able  canvass  for  his  candidate.  In  pol=- 
itics  he  was  a  Clay  Whig,  and  devoted  to  the  preservation 
of  the  Union.  He  believed  that  disintegration,  or  the 
power  of  dissolution,  as  verified  by  the  experience  of  all 
republics  and  confederations  of  free  States,  was  the  source 


ALEXANDER    WHITE.  523 

of  consolidation  and  despotism,  and  he  advocated  these 
principles  in  many  speeches  to  the  people  of  Alabama 
But  upon  the  secession  of  his  State  he  promptly  cast  his  lot 
with  the  Confederacy,  and  entered  the  service  as  a  private 
in  Hardee's  battalion  of  mounted  infantry,  and  was  taken 
prisoner  at  the  battle  of  Selma. 

Returning  to  his  State  at  the  close  of  the  war,  and  devot- 
ing himself  to  its  recuperation,  he  was  chosen  in  1865  a 
member  of  the  Alabama  Constitutional  Convention,  and  in 
1872  was  elected  on  the  Republican  ticket  to  a  seat  in  Con- 
gress, as  the  representative  of  the  State  at  large.  In  1875 
he  was  appointed  by  President  Grant  Chief  Justice  of  the 
Supreme  Court  of  Utah.  This  position  he  filled  with  great 
ability,  and  his  decisions  upon  the  important  questions  grow- 
ing out  of  the  Mormon  system,  elicited  the  highest  com- 
mendation from  the  press  and  people  of  the  States. 

In  1876  Judge  White  removed  to  Texas  and  located  at 
Dallas,  where  he  has  taken  a  high  stand  at  the  bar  and  en- 
joys a  fine  practice.  He  is  a  thorough  lawyer  and  a  man 
of  unquestionable  talent  and  ability.  Mr.  Burder,  in  his 
sketches  of  distinguished  men  of  Alabama,  compliments 
his  professional  attainments  in  glowing  terms,  and  says  that 
he  had  long  stood  in  the  front  rank  of  the  bar  of  that  State, 
and  that  some  of  his  arguments  before  the  court  and  appeals 
to  juries  were  the  most  powerful  ever  heard  in  Alabama. 
AYhile  he  has  been  an  assiduous  student  of  his  profession, 
h^  has  cultivated  other  branches  of  literature  and  is  a  man 
of  culture  and  scholarly  attainments. 

Having  lost  his  first  wife  in  1851,  he  was  again  married 
in  1855  to  Miss  Narcissa  S.  Rodgers,  of  Wilcox  County, 
Alabama,  the  present  accomplished  and  devoted  companion 
of  his  old  age.  He  is  in  religion  a  strict  Presbyterian,  a 
Socrates  in  moral  ethics,  and  in  manners  a  courteous  and 
polished  gentleman.  While  his  decided  political  opinions, 
and  the  candor  and  boldness  with  which  he  has  always  ad- 
vocated his  views  have  some  times  incurred  the  rancor  of 
collision  and  party  strife,  he  has  always  maintained  a  just 
and  honorable  intercourse  with  his  fellow-men,  and  enjoyed 
the  personal  esteem  of  his  bitterest  opponents. 


524  BENCH  AND  BAK  OF  TEXAS. 


THOMAS  Harrison. 


The  subject  of  this  sketch  was  born  in  Jefferson  County, 
Alabama,  on  the  1st  of  May,  1823,  but  in  his  early  youth 
removed  with  his  father's  family  to  Monroe  County,  Mis- 
sissippi, where  he  was  reared  and  educated;  and  if  ever 
the  beacons  of  parental  virtue  shed  hallowed  light  along 
the  pathway  of  youth,  he  has  had  the  noblest  incentives 
for  vio-orous  and  virtuous  exertion  in  the  strife  for  em- 
inence.  The  author  knew  his  father,  Isham  Harrison, 
well,  and  he  was  one  of  the  best  men  he  ever  knew.  He 
was  known  in  Mississippi  as  "  Father  Harrison,"  and,  as  a 
model  of  Christian  meekness  and  philanthrophy,  was  held 
in  the  highest  respect  and  veneration  by  all  ages  and  classes 
of  people. 

Thomas  Harrison  removed  to  Texas  in  1843',  and  soon 
afterwards  began  the  study  of  law  in  the  office  of  his 
brother-in-law,  William  H.  Jack,  of  Brazoria  County;  and 
when  he  had  prepared  himself  for  the  bar  he  returned  to 
Mississippi  and  located  in  Aberdeen,  and  began  the  practice 
of  his  profession  with  the  view  of  returning  to  Texas  after 
having  acquired  some  professional  experience  among  his 
old  friends  and  neighbors. 

But  the  Mexican  war,  which  was  just  beginning,  kindled 
in  his  bosom  a  spirit  of  patriotism  which  no  restraints 
could  control,  and,  in  1846,  he  enlisted  in  McClung's  com- 
pany, in  the  First  Kegiment  of  Misj*issippi  Rifles,  com- 
manded by  Jefferson  Davis,  and  participated  in  the  heroic 
capture  of  the  fortifications  of  Monterey.  At  the  expira- 
tion of  his  term  of  service  —  one  year  —  he  removed  to 
Houston,  Texas,  and  in  1850-51  represented  Harris  County 
in  the  Legislature ;  but  being  attracted  by  the  thrift  and 
prospects  of  Central  Texas,  he  located  in  1851  at  Marlin, 


THOMAS   HARRISON.  525 

in  Falls  County,  and  in  1855  settled  at  Waco,  which  he  has 
made  his  permanent  home. 

In  1857  he  was  induced  by  his  friends  to  become  a  can- 
didate for  district  judge  in  opposition  to  Judge  R.  E.  B. 
Baylor,  who  had  long  been  a  popular  incumbent  of  that 
office,  and  after  an  active  canvass  was  defeated  by  a  small 
majority. 

In  1860  he  was  elected  captain  of  a  volunteer  company 
organized  in  Waco,  and  was  sent  by  General  Houston  on  a 
campaign  of  six  months'  service  in  the  reofiment  of  Colonel 
Dalrymple  against  the  Indians  on  the  frontiers  along  the 
Pease,  Prairie  Dog,  and  Canadian  Rivers.  While  engaged 
in  this  service  he  was  mainly  instrumental  in  compelling 
the  surrender  of  the  United  States  troops  at  Camp  Cooper, 
whose  stores  were  a  timely  contribution  to  the  operations 
of  the  campaign.  This  was  perhaps  the  first  attack  made 
by  State  troops  upon  the  forces  of  the  general  government, 
and  removed  at  the  outset  a  garrison  which  might  have 
become  the  nucleus  for  an  invasion  of  the  State.  In  1861 
he  was  chosen  captain  of  a  company  of  cavalry  organized 
at  Mileau  for  the  Confederate  service,  and  joined  the  regi- 
ment of  Colonel  B.  F.  Terry,  at  Houston,  afterwards 
known  as  the  famous  "  Texas  Rangers."  This  regiment 
was  ordered  to  proceed  at  once  to  Bowling  Green,  Ken- 
tucky, and  upon  its  reorganization  at  that  place.  Captain 
Harrison  was  elected  major,  and  from  that  time  his  career 
was  identified  with  that  of  the  gallant  Terry.  Slowly  win- 
ning his  way  by  meritorious  conduct,  he  was  promoted  to 
lieutenant-colonel,  then  colonel,  and,  finally,  to  the  rank 
of  brigadier-general  of  cavalry,  and  gained  the  distinc- 
tion of  being  one  of  the  most  efficient  officers  in  the  army. 

His  services  at  Shiloh  were  conspicuous.  He  covered 
the  rear  of  the  Confederate  army  when,  on  the  second  da}', 
it  retired  from  the  field,  and  with  two  hundred  of  his 
"  Rangers  "  charged  and  broke  the  pursuing  cavalry  of  the 
enemy,  striking  and  so  confusing  the  van  of  the  advancing 
infantr}^  that  the  pursuit  was  immediately  abandoned.  He 
commanded  a  brigade  of  cavalry  at  the  battle  of  Murfrees- 
boro,  with  which  he  penetrated  the  enemy's  lines,  capturing 


526  BENCH  AND  BAR  OF  TEXAS. 

a  number  of  pieces  of  artillery  and  a  large  quantity  of 
stores,  which  he  brought  out  after  receiving  positive  orders 
to  return.  He  afterwards  participated  in  the  capture  of 
Murfreesboro  by  General  Forest,  and  having  served  with 
distinguished  efficiency  through  the  severe  campaign  of 
General  Longstreet  against  Knoxville,  styled  the  "  Valley 
Forge"  of  the  war,  at  its  close  he  was  recommended  for 
promotion  to  the  rank  of  brigadier-general  by  his  superior 
in  command.  General  Armstrong,  who  characterized  him  as 
the  best  colonel  of  cavalry  in  the  army. 

Gen.  Harrison  led  his  column  in  all  the  great  battles  of 
the  army  of  Tennessee  except  that  of  Missionary  Ridge, 
and  it  was  near  Rome,  Georgia,  that  the  author,  who  com- 
manded a  company  of  cavalry  in  Armistead's  brigade,  first 
met  him,  and  not  under  very  happy  circumstances.  That 
brigade,  commanded  at  that  time  by  the  gallant  Col.  P.  B. 
Spence,  had,  during  two  consecutive  days,  driven  back  the 
Federal  cavalry  in  its  attempts  to  advance  from  Rome, 
when  Gen.  Harrison  came  up  with  his  brigade  and  took 
command.  In  the  meantime  a  corps  of  Federal  infantry 
had  entered  Rome,  and  on  the  third  morning  moved  out  in 
heavy  force  with  the  cavalry.  Their  object  was  to  strike 
the  line  of  march  of  Gen.  Hood,  who  was  then  moving  his 
army  around  Rome.  Gen.  Harrison  held  his  position 
tenaciously,  though  his  Texas  regiments  were  once  or  twice 
driven  back  by  the  overwhelming  forces  of  the  enemy,  and 
it  was  in  making  a  flank  charge  upon  these  lines  of  infantry, 
ordered  by  Gen.  Harrison,  who  took  them  for  dismounted 
cavalry,  that  the  author  and  a  large  number  of  his  company 
were  taken  prisoners.  Although  his  lines  were  finally 
broken  and  driven  back  by  the  desperate  odds  against  him, 
his  object  was  accomplished,  and  the  rear  of  Hood's  army 
passed  safely  by. 

Gen.  Harrison  was  always  at  the  head  of  his  column, 
and  was  almost  constantly  in  the  presence  of  the  enemy. 
His  men  were  devotedly  attached  to  him  and  had  the  ut- 
most confidence  in  his  judgment  and  gallantry,  though  he 
was  a  rigid  disciplinarian  and  exacted  the  most  faithful 
performance  of  duty  ;  hence  his  command  was  always  well 


THOMAS    HARRISON.  527 

guarded  and  he  never  suffered  a  sui'prise.  He  was  severely 
wounded  and  had  several  horses  killed  under  him,  but  he 
considered  himself  the  property  of  the  service  and  devoted 
to  the  exigencies  of  war,  and  he  shunned  no  danger,  evaded 
no  hardship,  and  withheld  no  effort  which  the  cause  he 
espoused  demanded.  After  the  surrender  of  the  army  of 
Gen.  Lee,  he  endeavored  to  transfer  his  command  to  the 
department  of  Gen.  Smith,  but  on  learning  that  he,  too, 
had  surrendered,  his  command  was  paroled  and  disbanded 
at  Macon,  Mississippi,  and  he  returned  with  his  men  to 
Texas. 

In  1866  he  was  elected  district  judge  and  served  with 
eminent  satisfaction  to  the  bar  and  the  people,  but  was 
removed  by  the  military  authority  in  1877  as  one  of  the 
incorrigible  obstructions  to  the  Congressional  plans;  but 
really,  as  in  all  the  other  instances  of  a  like  character  men- 
tioned in  this  work,  in  a  spirit  of  revenge  and  to  make 
way  for  the  promotion  of  some  Northern  adventurer  or  to 
reward  Southern  infidelity. 

He  was  one  of  the  Democratic  electors  of  Texas  during 
the  Presidential  campaign  of  1872,  and  since  that  time  has 
devoted  himself  exclusively  to  the  practice  of  his  profes- 
sion and  the  supervision  of  his  farm.  He  is  a  good  lawyer 
and  a  safe  counselor,  but  his  strongest  professional  quali- 
ties are  those  of  a  successful  advocate.  He  is  a  man  of 
great  independence  of  character,  frank  and  positive  in  the 
expression  of  his. views,  tenacious  and  conscientious  in  his 
convictions,  and  faithful  in  the  discharge  of  his  duties  and 
obligations,  both  as  a  lawyer  and  citizen.  These  qualities 
render  him  popular  professionally  and  socially,  and  he  is  a 
man  hio^hly  esteemed  in  every  circle  and  in  all  the  relations 
of  life.  He  was  married  at  Waco,  in  1858,  to  Miss  Sallie 
E.  McDonald,  a  niece  of  Gov.  John  Ellis,  the  well  known 
Governor  of  North  Carolina  during  the  war,  a  lady  of  most 
excellent  qualities,  and  this  event  has  been  felicitous  both 
to  his  happiness  and  prosperity. 


528  BENCH  AND  BAR  OF  TEXAS. 


James  M.  Anderson. 


James  Monroe  Anderson  was  born  in  Lawrence  County, 
Alabama,  on  the  30th  day  of  July,  1824.  His  parents  were 
natives  of  Virginia,  and  his  father  was  by  occupation  a 
merchant.  He  removed  from  Alabama  to  Winchester,  Ten- 
nessee, in  1827,  where  the  subject  of  this  sketch  spent  his 
early  youth.  At  the  age  of  twelve  years  he  engaged  in 
business  as  a  clerk,  in  order  to  procure  the  necessary  means 
for  obtaining  an  education,  and  having  accomplished  his 
object,  and  thoroughly  prepared  himself,  he  entered  Cum- 
berland University  and  graduated  at  that  institution  in  1848. 
He  then  taught  school  nearly  two  years,  and  a  portion  of 
that  time  instructed  the  advanced  classes  in  Winchester 
Academy.  While  engaged  in  this  vocation  he  devoted  his 
leisure  time  to  the  study  of  law,  under  the  supervision  of 
Judge  Nathan  Green,  afterwards  chief  justice  of  Tennessee, 
and  in  the  fall  of  1849  was  admitted  to  the  bar  at  Winchester, 
where  he  commenced  his  practice. 

But  his  immediate  prospects  in  the  mountains  of  Tennessee 
were  not  commensurate  with  his  ambition  —  the  opportun- 
ities for  the  exercise  of  his  genius  too  uncertain  for  his 
aspirations,  and,  in  1850,  he  removed  to  Texas,  and  located 
at  Eusk,  in  Cherokee  County,  where  he  formed  a  copartner- 
ship in  the  practice  of  law  with  Judge  Stockton  P.  Donley, 
which  continued,  with  the  interruption  caused  by  war,  until 
1866,  when  the  latter  was  elevated  to  the  Supreme  bench. 

Mr.  Anderson  has  always  been  a  staunch  Democrat,  and 
was  an  ardent  advocate  and  supporter  of  the  policy  of  the 
Southern  States  in  severing  their  connection  with  a  govern- 
ment hostile  to  their  interests  and  constitutional  rights.  He 
was  a  member  of  the  Texas  Secession  Convention  of  1862, 
and  voted  emphatically  for  the  measures  it  adopted  ;  and 


JAMES    M.  ANDERSON.  529 

when  General  Banks  organized  his  expedition  for  the  in- 
vasion of  Texas  from  the  Eed  River,  he  entered  the  Con- 
federate army  as  a  private,  and  participated  in  the  battles 
which  resulted  in  the  defeat  of  that  general. 

After  the  termination  of  the  war,  accommodating  himself 
as  far  as  possible  to  the  exigencies  of  the  issue,  he  resumed 
the  duties  of  his  profession,  and,  in  18<36,  removed  to  Waco, 
where  he  has  contiimed  to  reside,  in  the  enjoyment  of  a 
large  and  successful  practice.  In  1873  he  was  elected  a 
member  of  the  Legislature,  and,  with  this  exception,  has 
never  permitted  the  emoluments  of  office  or  public  honors 
to  allure  him  from  the  zealous  duties  of  the  bar. 

At  Waco  he  has  attained  additional  distinction  as  a  law- 
yer and  eminence  as  a  citizen.  He  is  an  excellent  judge 
of  law,  a  discreet  and  able  practitioner,  and  a  kind-hearted, 
congenial  man.  He  is  faithful  and  thorough  in  the  dis- 
charge  of  his  professional  duties,  and  when  his  views  have 
once  been  established  by  exhaustive  research  and  confirmed 
by  a  sound  judgment,  he  holds  on  to  his  cases  with  a  ten- 
acious grip,  and  pursues  them  as  long  as  there  is  a  hook 
of  possibility  upon  which  to  hang  a  thread  of  hope.  These 
well  known  attributes  establish  for  him  a  reliability  in 
difficult  cases  which  draws  to  his  practice  many  of  the 
most  important  suits  that  are  brought  before  the  courts 
of  his  section. 

His  social  characteristics  consist  of  a  serene,  even-tem- 
pered and  patient  deportment,  which  never  permits  his 
equanimity  to  be  disturbed  by  those  little  adverse  currents 
of  circumstance  which  are  so  often  sources  of  annoyance 
and  perplexity  to  the  greatest  and  most  philosophical  men ; 
and  of  a  spirit  of  accommodation  and  concession  to  the 
views  and  feelings  of  others,  which,  if  more  prevalent, 
would  render  the  world  better  and  happier,  and  elevate 
the  society  of  men. 
31 


530  BENCH   AND    BAR    OF   TEXAS. 


W.     S.      HERNDON. 


William  S.  Herndon  is  a  native  of  Georojia,  and  removed 
with  his  parents  to  Texas  in  1851,  and  for  several  years 
assisted  his  father  in  clearing  a  farm  upon  the  frontier,  but 
he  possessed  a  fondness  for  books  and  a  precocious  thirst 
for  knowledge,  and  during  the  intermission  of  his  farm 
labors  read  and  reread  all  the  books  in  the  limited  library 
of  his  father,  including  the  Bible,  with  which  he  became  re- 
markably conversant.  In  1854  his  ambition  burst  the  re- 
straints of  the  circumstances  which  surrounded  him  and  he 
determined  to  prepare  himself  for  the  profession  of  law. 
His  father  abetted  his  desires  with  his  slender  means,  and 
he  was  placed  in  McKensie  College,  where  he  graduated 
with  honor  in  1859.  He  was  a  diligent  student  and  early 
learned  the  value  of  methodical  employment  of  his  time, 
and  was  admitted  to  the  bar  in  a  few  months  after  he  began 
the  study  of  law,  receiving  the  commendation  of  the  court 
and  the  committee  of  lawyers,  who  examined  him,  for  his 
thorough  knowledge  of  fundamental  principles.  Having 
exhausted  his  means  in  his  efforts  to  reach  the  bar  he  began 
the  practice  of  law  at  Tyler  under  the  gravest  difficulties, 
which  no  doubt  proved  the  best  school  for  his  efforts  and 
shaped  his  subsequent  attainments  and  success. 

He  was  an  ardent  devotee  of  the  Southern  cause  and 
when  the  war  began  in  1861,  left  his  office  and  enlisted  as 
a  private  soldier  in  the  Confederate  army  but  soon  after- 
wards attained  the  rank  of  captain  and  served  faithfully 
until  the  close  of  the  war.  He  then  returned  to  Tyler  and 
finding  himself  again  penniless  determined  to  begin  life 
anew,  and  devoted  all  the  energies  of  his  nature  to  the 
attainment  of  professional  distinction  and  success.  In 
1865  he  formed  a  copartnership  with  Judge  J.  C.  Robertson, 


W,  S.  HERNDON.  531 

and  this  firm  has  been  one  of  the  most   successful  in  the 
State. 

In  1871  the  political  prospects  of  Texas  were  gloomy. 
Nearly  every  native  Texan  had  been  removed  from  office 
by  the  military  authority  as  being  "  an  obstructionist  "  and 
the  Democrats  scarcely  held  an  office  in  the  State.  In  the 
First  Congressional  District  the  Republicans  had  a  large 
majority  and  scouted  the  possibility  of  defeat,  but  a  Dem- 
ocratic convention  held  at  Rusk,  in  Cherokee  County,  unani- 
mously nominated  Mr.  Herndon  as  candidate  for  Congress. 
His  energy  and  determination  were  the  only  omens  of  suc- 
cess ;  besides  he  possessed  ample  means  to  meet  the  demands 
of  the  canvass,  and  he  accepted  the  hazardous  honor  and 
boldly  entered  the  apparently  hopeless  contest.  He  im- 
mediately threw  down  the  gauntlet  to  his  opponent,  met 
him  on  the  hustings  in  a  hundred  places  in  the  district  and 
discussed  with  him  before  the  people  the  issue  of  the  cam- 
paign. Every  Democrat  gathered  in  his  ranks,  converts 
flocked  to  his  standard  and  it  was  soon  apparent  that  his 
strength  was  growing  with  hopeful  progress.  He  aroused 
every  effort  of  his  party.  He  was  thoroughly  familiar 
with  the  Republican  party  —  its  history,  its  rise  and  its 
purposes,  and  he  exposed  its  false  principles  and  hollow 
pretensions  to  the  view  of  reason  and  common  sense,  and 
at  the  close  of  the  canvass  his  success  was  assured.  He 
was  elected  by  a  majority  of  more  than  four  thousand 
votes  and  permanently  planted  once  more  the  Democratic 
standard  in  his  district.  He  was  re-elected  to  the  Forty- 
third  Congress  by  more  than  five  thousand  majority  over 
his  Republican  competitor. 

The  sagacity  and  energy  which  gained  him  success  at 
the  bar  rendered  him  an  able  and  useful  member  of  the 
National  Congress,  and  he  was  particularly  noted  for  his 
efficient  services  in  the  committees  of  which  he  was  a  mem- 
ber. He  was  an  excellent  parliamentarian  and  was  fjimiliar 
with  the  ethics  and  tactics  required  to  advance  the  meas- 
ures he  favored  and  retard  those  which  he  opposed. 

On  his  retirement  from  Congress  in  1875,  he  returned  to 

vigorous  practice  of  his  profession,  and  since  that   time 


532  BENCH  AND  BAR  OF  TEXAS. 

his  success  at  the  bar  has  continued  to  increase  and  he  has 
acquired  a  large  fortune  as  well  as  professional  distinction. 
His  capacity  for  labor,  his  fine  business  qualities  and  superb 
management  of  difficult  cases,  have  gained  him  a  wide  popu- 
larity and  invited  an  extensive  patronage,  and  his  practice, 
especially  in  land  cases,  embraces  many  counties  of  the 
State. 

He  was  chosen  a  member  of  the  State  Convention  held 
at  Galveston  in  1876,  in  which  he  took  a  prominent  part, 
and  was  sent  as  a  delegate  to  the  National  Convention  at 
St.  Louis,  which  nominated  Mr.  Tilden  for  the  Presidency. 
He  was  made  one  of  the  vice-presidents  of  that  conven- 
tion, and  was  selected  to  second  the  nomination  of  the 
candidates  in  an  appropriate  speech,  and  performed  this 
duty  in  a  manner  which  elicited  commendation  and  applause. 

In  1878  he  was  a  member  of  the  Democratic  State  Con- 
vention, which  met  at  Austin,  and  labored  ably  and  zealously 
in  the  interest  of  Governor  Hubbard  in  opposition  to  the 
wing  of  the  Democratic  party  lead  by  Governor  Throck- 
morton. Since  that  time  he  has  declined  all  opportunities 
for  political  preferment,  and  has  devoted  himself  exclu- 
sively to  his  profession. 

Mr.  Herndon  is  a  thorough  lawyer  and  a  man  of  fine 
talents.  The  natural  thirst  and  inquisitiveness  of  his  mind 
has  led  him  to  search  not  only  the  depths  of  legal  science, 
but  the  treasures  of  varied  branches  of  knowledge,  and  his 
general  culture  has  kept  pace  with  his  professional  skill. 

His  early  success  was  faithfully  abetted  by  the  co-opera- 
tion of  an  accomplished  companion.  He  was  married 
during  the  first  year  of  his  practice  to  Miss  Maria  Louisa 
McKellar,  of  Henderson  County,  a  lady  whose  qualities 
were  peculiarly  fitted  to  promote  the  sentiments  of  high 
resolve  and  encourage  noble  exertion.  He  is  a  man  of 
active  public  spirit  and  enterprise,  and  is  a  warm  and  lib- 
eral supporter  of  every  object  calculated  to  promote  the 
interest  of  society,  and  especially  the  welfare  of  the  com- 
munity in  which  he  resides. 


CHAPTEE    IX. 


LEGISLATIVE   DATA. 

THE  CONSTITUTION  OF  COAHUILA  AND  TEXAS  —  THE  TEXAN  DECLARA- 
TION OF  INDEPENDENCE — CONSTITUTION  OF  THE  TEXAN  REPUBLIC  — 
ARTICLES   OF    ANNEXATION. 

The  Constitution  of  the  State  of  Coahuila  and  Texas, 
adopted  at  Saltillo  on  the  11th  of  March,  1827. 

The  Governor  of  the  free  State  of  Coahuila  and  Texas 
to  all  its  inhabitants  —  Knoio,  that  the  Constituent  Congress 
of  the  same  State  has  decreed  and  sanctioned  the  following 
political  Constitution  of  the  free  State  of  Coahuila  and 
Texas. 

PRELIMINARY   REGULATIONS. 

Article  1.  The  State  of  Coahuila  and  Texas  consists  in 
the  union  of  all  the  Coahuiltejanos. 

2.  It  is  free  and  independant  of  the  other  United  Mexi- 
can States,  and  of  every  other  foreign  power  and  dominion. 

3.  The  sovereignty  of  the  State  resides  originally  and 
essentially  in  the  general  mass  of  the  individuals  who  com- 
pose it;  but  these  do  not  of  themselves  execute  any  other 
acts  of  sovereignty  than  those  designated  in  this  Constitu- 
tion, and  in  the  form  which  it  prescribes. 

4.  In  all  matters  relating  to  the  Mexican  Federation,  the 
State  delegates  its  faculties  and  powers  to  the  General  Con- 
gress of  the  same,  but  in  all  that  relates  to  the  administra- 
tion and  entire  government  of  the  State,  it  retains  its 
liberty,  independence  and  sovereignty. 

5.  Therefore^  belongs  exclusively  to  the  same  State  the 
right  to  establish  by  means  of  its  representation  its  funda- 
mfental  laws,  comformably  to  the  basis  sanctioned  in  the 
constitutive  act  and  general  Constitution. 

( 533 ) 


534  BENCH  AND  BAR  OF  TEXAS, 

6.  The  Territory  of  the  State  is  the  same  which  compre- 
hends the  Provinces  heretofore  known  by  the  name  of 
Coahuila  and  Texas.  A  constitutional  law  shall  fix  their 
limits  with  respect  to  the  other  a  joining  States  of  the  Mexi- 
can Federation. 

7.  The  territory  of  the  State  is  divided  for  the  present, 
for  its  better  administration,  into  three  departments,  which 
shall  be  —  Bexar,  which  district  embraces  the  whole  of  the 
territory  which  corresponds  to  that  called  the  Province  of 
Texas,  which  alone  is  a  district ;  Monclova,  which  compre- 
hends the  district  of  this  name  and  that  of  the  Eio  Grande ; 
Saltillo,  which  embraces  the  district  of  this  name  and  that 
of  Parras. 

8.  Congress  hereafter  shall  have  power  to  alter,  vary  and 
modify  this  division  of  the  territory  of  the  State,  in  the 
manner  it  may  deem  most  conducive  to  the  felicity  of  the 
people. 

9.  The  Apostolic  Roman  Catholic  religion  is  that  of  the 
State  ;  this  it  protects  by  wise  and  just  laws,  and  prohibits 
the  exercise  of  any  other. 

10.  The  State  shall  regulate  and  defray  the  expenses 
which  may  be  necessary  for  the  preservation  of  worship, 
in  conformity  with  the  regulation  of  the  concordats  which 
the  nation  shall  celebrate  with  the  Holy  See,  and  by  these 
it  shall  dictate  relative  to  the  exercise  of  patronage  in  the 
whole  Federation. 

11.  Every  man  who  inhabits  the  territory  of  the  State, 
although  he  be  in  transit,  shall  enjoy  the  imprescriptible 
rights  of  liberty,  security,  property  and  equality ;  and  it  is 
the  duty  of  the  same  State  to  conserve,  and  protect  by  laws, 
wise  and  equitable,  those  general  rights  of  mankind. 

12.  It  is  also  an  obligation  on  the  State,  to  protect  all  its 
inhabitants  in  the  right  which  they  have  to  write,  print  and 
publish  freely  their  thoughts  and  political  opinions,  without 
the  necessity  of  examination,  revision,  or  censure,  anterior 
to  the  publication,  under  the  restrictions  and  responsibilities 
established,  or  which  hereafter  may  be  established,  by 
general  laws  on  the  subject. 

13.  In  this  State  no   person    shall  be  born  a  slave,  after 


LEGISLATIVE    DATA.  535 

this  Constitution  is  published  in  the  capital  of  each  district, 
and  six  months  thereafter,  neither  will  the  introduction  of 
slaves  be  permitted  under  any  pretext. 

14.  It  is  the  duty  of  every  man  who  inhabits  the  State 
to  obey  its  laws,  respect  its  constituted  authorities,  and 
contribute  to  the  support  of  the  same  State,  in  the  mode 
which  it  asks. 

15.  To  the  State  belongs  every  species  of  vacant  goods 
in  its  territories,  and  those  of  its  intestate  inhabitants  who 
have  no  legitimate  successor  in  the  manner  laid  down 
by  the  laws. 

16.  The  State  is  composed  only  of  two  classes  of  per- 
sons, to  wit:  inhabitants  of  Coahuila  and  Texas  (Coahuil- 
tejanos),  and  citizens  of  Coahuila  and  Texas. 

17.  Those  are  inhabitants  of  Coahuila  and  Texas  (Coa- 
huiltejanos)  :  First.  All  men  born  and  domesticated  in  the 
territory  of  the  State  and  their  descendants.  Secondly. 
Those  born  in  any  other  part  of  the  territory  of  the  Feder- 
ation, or  those  who  fix  their  domicil  in  this  State.  Thirdly. 
Those  foreigners  who  are  legitimately  established  in  this 
State,  be  they  of  what  nation  they  may.  Fourthly.  Those 
foreigners  who  obtain  from  Congress  letters  of  naturaliza- 
tion, or  have  a  domicil  in  the  State,  obtained  according  to 
the  law  which  shall  be  passed  as  soon  as  the  Congress  of  the 
Union  fixes  the  general  rule  of  naturalization,  which  it  ought 
to  establish  conformably  to  the  twenty-sixth  clause  of  the 
faculties  which  the  Federal  Constitution  designates. 

18.  Those  are  citizens  of  Coahuila  and  Texas  (Coahuilte- 
janos)  :  First.  All  men  born  in  the  State  and  who  are  domi- 
ciled in  any  part  of  its  territory.  Secondly.  All  citizens  of  the 
other  States  and  Territories  of  the  Federation  as  soon  as 
they  become  domiciliated  in  the  State.  Thirdly.  All  the 
children  of  Mexican  citizens  who  have  been  born  out  of  the 
territory  of  the  Federation  and  who  fix  their  domicil  in  the 
State.  Fourthly.  The  foreigners  who  are  actually  and 
legally  domiciliated  in  the  State  whatever  may  have  been 
the  country  of  their  nativity.  Fifthly.  Foreigners  who  en- 
joy the  rights  of  inhabitants  of  Coahuila   and   Texas,  have 


536  BENCH  AND  BAR  OF  TEXAS. 

obtained  from  Congress  special  letters  of  citizenship  —  the 
laws  will  prescribe  the  merits  and  circumstances  requisite 
for  the  concession  of  such. 

19.  Those  born  in  the  territory  of  the  Federation,  and 
those  foreigners  resident  in  it  (with  the  exception  of  their 
children),  who,  at  the  time  of  the  proclamation  of  the  pol- 
itical emancipation  of  the  nation,  were  unfaithful  to  the 
cause  of  independence,  and  emigrated  to  a  foreign  country, 
or  that  dependent  on  the  Spanish  government,  are  neither 
entitled  to  the  rights  of  domiciliation  nor  citizenship  in 
said  State. 

20.  The  rights  of  citizenship  are  lost;  First.  By  acquir- 
ing naturalization  in  a  forjeign  country.  Secondly.  By 
acquiring  a  station  of  profit  or  honor  under  a  foreign  gov- 
ernment without  permission  of  Congress.  Thirdly.  By 
sentence  legally  obtained,  which  imposes  personal  or  infa- 
mous punishments.  Fourthly.  By  selling  his  vote,  or  buying 
that  of  another,  for  himself  or  for  a  third  person,  whether 
in  popular  assemblies,  either  as  Presidents,  Tellers  or  Secre- 
taries, or  in  the  exercise  of  any  other  public  functions. 
Fifthly.  For  having  resided  five  consecutive  years  out  of  the 
limits  of  the  territory  of  the  Federation,  without  commis- 
sion of  the  general  government,  or  particular  one  of  the 
State,  or  without  its  leave. 

21.  He  that  has  lost  the  rights  of  citizenship  can  not 
regain  them  without  the  express  act  of  restoration  by  Con- 
gress. 

22.  The  exercise  of  the  same  rights  are  suspended  : 
First.  For  physical  or  moral  incapacity,  previously  ascer- 
tained by  judicial  decision.  Secondly.  For  not  being  twen- 
ty-one years  complete,  except  those  who  are  married,  who 
can  enter  upon  the  exercise  of  these  rights  from  the  time 
they  contract  matrimony,  of  whatever  age  they  may  be. 
Thirdly.  For  being  a  debtor  to  the  public  funds,  the  time  of 
payment  elapsed,  legal  requisition  therefor  made  and  not 
complied  with.  Fourthly.  For  having  been  prosecuted 
criminally,  unless  the  defendant  is  absolved  of  the  matter, 
or  condemned  to  punishment  not  painful  or  infamous. 
Fifthly.  For  not  having  an  employment,  trade,  or  any  known 


LEGISLATIVE    DATA.  537 

method  of  obtaining  a  livelihood.  Sixthly.  For  not  know- 
ing how  to  read  and  write;  but  this  shall  not  take  effect 
until  the  year  1830,  with  regard  to  those  who  hereafter  en- 
ter into  the  rights  of  citizenship. 

23.  The  rights  of  citizenship  can  only  be  destroyed  or 
suspended  for  the  causes  stated  in  articles  20  and  22. 

24.  None  but  citizens  who  are  in  the  exercise  of  their 
rights  can  vote  for  popular  employments  in  the  State,  in 
those  instances  stated  in  the  law ;  and  these  only  can 
obtain  the  said  employments,  or  any  others  in  the  same 
State. 

25.  Professional  employments  form  an  exception  to  the 
second  part  of  the  anterior  article,  which  employments  can 
also  be  conferred  on  foreigners. 

FORM   OP   THE    STATE    GOVERNMENT. 

26.  The  object  of  the  State  government  is  the  happiness 
of  the  individuals  who  compose  it,  for  the  end  of  all  polit- 
ical society  is  no  other  than  the  welfare  of  the  associated. 

27.  The  officers  of  the  government,  invested  with  what- 
ever kind  of  authority,  are  no  more  than  mere  agents  or 
commissioners  of  the  State,  responsible  to  it  for  their  public 
conduct. 

28.  The  government  of  the  State  is  popular  representative 
federal;  in  consequence  it  shall  not  have  in  it  any  hereditary 
office  or  privilege. 

29.  The  supreme  power  of  the  State  is  divided  for  its 
exercise  into  legislative,  executive  and  judicial,  and  never 
can  these  three  powers,  nor  two  of  them,  be  united  in  one 
corporation  or  power,  nor  the  legislative  power  deposited 
in  one  individual. 

30.  The  exercise  of  the  legislative  power  shall  reside  in  a 
Congress  composed  of  deputies  popularly  elected. 

31.  The  exercise  of  the  executive  power  shall  reside  in  a 
citizen,  who  shall  be  denominated  Governor  of  the  State, 
and  who  shall  also  be  chosen  popularly. 

32.  The  exercise  of  the  judicial  power  shall  reside  in  the 
tribunals  and  courts  which  this  Constitution  establishes. 


538  BENCH   AND    BAR   OF   TEXAS. 

TITLE  I. 
•      THE  LEGISLATIVE  POWER  OF  THE  STATE. 
SECTION   I. OF   THE    DEPUTIES    OF    CONGRESS. 

33.  The  Congress  consists  of  the  deputies  which  repre- 
sent the  State,  chosen  conformably  to  this  Constitution  ; 
its  number  shall  be  that  of  twelve  members  proprietary  and 
six  supernumerary  members,  until  the  year  1832. 

34.  The  Congress  in  that  year,  and  in  the  last  of  every 
ten  years  which  follow,  shall  have  power  to  augment  the 
number  of  deputies,  under  the  standard  of  one  for  every 
seven  thousand  souls. 

35.  The  election  of  proprietary  deputies  and  supernu- 
meraries shall  be  held  in  all  and  every  one  of  the  districts  of 
the  State,  A  law  shall  fix  the  number  of  deputies  of  one 
and  the  other  class  which  each  district  ought  to  appoint. 

36.  To  be  a  deputy,  proprietary,  or  supernumerary,  it  is 
required  to  have,  at  the  time  of  the  election,  the  following 
qualities:  First.  To  be  a  citizen  in  the  exercise  of  his  rights. 
Secondly.  To  be  of  the  full  age  of  twenty-five  years.  Thirdly. 
To  be  an  inhabitant  of  the  State,  with  residence  in  it  for 
two  years  immediately  before  the  election.  To  natives  of 
the  State  it  is  sufficient  to  possess  the  two  first  requisities. 

37.  It  is  necessary  for  those  not  born  in  the  territory  of 
the  Federation,  in  order  to  be  deputies,  proprietary  or 
supernumerary,  to  have  had  eight  years'  residence  in  it  and 
to  be  worth  eight  thousand  dollars  in  property,  or  to  have 
an  income  of  some  business  of  one  thousand  dollars  an> 
nually,  and  the  qualifications  provided  in  the  foregoing 
article. 

38.  There  are  excepted  from  the  foregoing  those  born  in 
any  other  part  of  the  territory  of  America,  which  in  the 
year  1810  depended  on  Spain,  and  which  may  not  have 
united  itself  to  any  other  nation,  or  remained  in  dependence 
on  Spain ;  to  those  it  is  sufficient  that  they  have  been  three 
years,  complete,  in  the  Mexican  Kepublic,  and  possess  the 
requisites  prescribed  in  article  36. 


LEGISLATIVE    DATA.  539 

39.  Those  can  not  be  deputies,  proprietary  or  supernumer- 
ary: First.  The  Governor  or  Vice-Governor  of  the  State; 
the  members  of  the  council  of  government ;  the  officers  of 
the  Federation ;  the  civil  functionaries  of  the  State  govern- 
ment ;  the  ecclesiastics  who  exercise  any  species  of  juris- 
diction or  authority  in  some  part  of  the  district  where  the 
election  may  be  held  ;  foreigners,  at  the  time  when  war 
may  exist  between  the  country  of  their  nativity  and 
Mexico. 

40.  In  order  that  those  public  functionaries  of  the  Feder- 
eration,  or  of  the  State,  comprehended  in  the  anterior 
article,  may  be  elected  deputies,  they  ought  absolutely  to 
have  ceased  the  exercise  of  their  functions  four  months 
before  the  election. 

41.  If  the  same  individual  should  be  chosen  deputy  pro- 
prietary for  two  or  more  districts,  the  election  of  that  dis- 
trict in  which  he  actually  resides  shall  have  preference.  If 
he  does  not  reside  in  either,  the  election  of  the  district  of 
his  origin  shall  have  preference.  If  he  was  neither  a  resi- 
dent nor  a  native  of  some  one  of  the  said  districts,  that 
shall  stand  which  the  same  elected  deputy  shall  designate. 
In  either  of  these  cases,  or  of  the  death  or  inability  of  the 
deputies  proprietary  to  discharge  their  functions  according 
to  the  judgment  of  Congress,  their  duties  shall  devolve  upon 
the  respective  deputies  supernumerary. 

42.  If  it  shall  happen  that  the  same  citizen  is  elected 
deputy  supernumerary  for  two  or  more  districts,  in  this 
case  the  same  order  of  preference  provided  for  in  the  three 
first  parts  of  the  anterior  article  prevails.  And  in  the  dis- 
trict which  remains  without  a  deputy  supernumerary,  the 
vacancy  shall  be  filled  up  by  the  person  who,  in  the  respect- 
ive electoral  assembly,  had  the  next  greatest  number  of 
votes.     In  case  of  a  tie,  it  shall  be  decided  by  lot  {suerte). 

43.  The  deputies,  during  the  discharge  of  their  commis- 
sions, shall  obtain  from  the  public  treasury  of  the  State  the 
compensation  which  the  anterior  Congress  shall  assign  ;  and 
they  shall  also  receive  what  may  appear  necessary  for  their 
expenses  in  going  to  the  place  of  session,  and  in  returning 
from  them  to  their  houses  on  the  close  of  the  session. 


540  BENCH  AND  BAR  OF  TEXAS. 

44.  The  deputies  at  no  time,  and  in  no  case,  nor  before 
any  authority,  shall  be  responsible  for  the  opinions  which 
they  manifest  in  the  discharge  of  their  duties.  In  criminal 
cases  instituted  against  them,  they  shall  be  judged  by  the 
tribunals  which  will  be  hereafter  mentioned ;  and  from  the 
day  of  their  appointment  until  they  have  completed  the  two 
years  of  their  deputation,  they  can  not  be  accused  unless 
before  Congress,  which  is  constituted  a  grand  jury  to  de- 
clare if  there  is,  or  is  not,  cause  for  an  accusation.  In  the 
meantime,  during  the  session,  the  deputies  can  not  be  sued 
in  civil  suits,  nor  arrested  for  debt. 

45.  During  the  time  of  their  deputation,  counting  for  this 
purpose  from  the  day  of  their  appointment,  they  can  not 
obtain  for  themselves  any  employment  from  the  govern- 
ment, nor  shall  they  solicit  it  for  others,  nor  even  for  their 
promotion,  except  it  be  in  the  regular  order  of  office. 

SECTION  II.  —  OF   THE  ELECTION  OF  DEPUTIES. 

46.  For  the  election  of  the  deputies,  there  shall  be  held 
electoral  municipal  assemblies,  and  electoral  district  assem- 
blies. 

PARAGRAPH  FIRST MUNICIPAL  ELECTORAL  ASSEMBLIES. 

47.  The  electoral  municipal  assemblies  shall  be  composed 
of  the  citizens  who  are  in  the  exercise  of  their  rights,  and 
who  may  be  inhabitants  and  residents  within  the  limits  of 
their  respective  Ayuntamientos,  and  no  person  of  this  can 
be  excused  from  attending. 

48.  These  assemblies  shall  be  celebrated  the  first  Sunday 
and  the  following  day,  of  the  month  of  August,  the  year 
anterior  to  the  renovation  of  Congress,  in  order  to  nomi- 
nate the  electors  of  the  district,  who  are  to  choose  the  depu- 
ties ;  and  eight  days  previously,  the  president  of  every 
Ayuntamiento,  without  the  necessity  of.  other  order,  shall 
call  together  the  citizens  of  his  district,  by  a  proper  notice, 
or  as  may  be  the  custom,  that  they  shall  convene  to  make 
the  election  at  the  time  and  in  the  form  which  this  Consti- 


LEGISLATIVE   DATA.  541 

tution  requires,  giving  prompt  notification  to  the  villages  of 
the  same  district  for  the  information  of  the  inhabitants. 

49.  In  order  that  the  citizens  may  assist  with  the  greater 
convenience  every  Ayuntamiento,  according  to  its  locality 
and  the  population  of  its  territory,  shall  determine  the 
municipal  assemblies  which  it  ought  to  form  in  its  limits, 
and  in  the  public  places  in  which  they  have  to  be  held,  des- 
ignatinof  the  limits  of  each. 

50.  They  shall  be  presided,  one  by  the  political  chief  or 
alcalde,  and  the  remainder  by  other  individuals  of  the 
Ayuntamiento  to  whom  it  falls  by  lot,  and  in  default  of 
those,  that  corporation  shall  appoint  as  president  of  the  re- 
spective municipal  assembly  an  inhabitant  of  its  own  dis- 
trict, who  shall  know  how  to  read  and  write. 

51.  On  the  aforesaid  Sunday  in  August,  at  the  hour  of 
meeting,  the  citizens,  who  have  convened  in  the  place  de- 
signated, shall  open  the  said  assembly  by  appointing  from 
amongst  themselves,  by  a  majority  vote,  one  secretary  and 
two  tellers,  who  shall  know  how  to  read  and  write. 

52.  The  elections  shall  be  opened  on  the  two  days  speci- 
fied in  article  48  for  the  space  of  four  hours  each  day, 
divided  between  the  morning  and  the  evening ;  and  in  every 
one  of  these  assembles  there  shall  be  a  register,  in  which 
shall  be  recorded  the  votes  of  the  citizens  who  have  convened 
to  choose  the  electors  of  the  district,  and  the  names  of  the 
voters  and  those  voted  for  shall  be  set  down  in  alphabetical 
order. 

53.  To  be  an  elector  of  a  district  it  is  necessary  to  be  a 
citizen  in  the  exercise  of  his  rights,  of  the  age  of  twenty- 
five  years  complete,  to  know  how  to  read  and  write,  and  to 
be  an  inhabitant  and  resident  in  some  part  of  the  district 
the  year  immediately  anterior  to  the  election. 

54.  Every  citizen  shall  choose  viva  voce  or  by  writing  the 
respective  electors  of  the  district ;  in  the  former  case  the 
voter  shall  call  the  names  of  those  for  whom  he  votes  in  a 
loud  voice,  which  shall  be  entered  in  the  list  and  read  by  the 
secretary ;  and  it  is  indispensable  that  the  votes  should  be 
written  in  the  register  in  the  presence  of  the  voter.     No 


542  BENCH  AND  BAR  OF  TEXAS. 

person  shall  vote  for  himself  in  this   or  any  other  election, 
under  the  penalt}^  of  loosing  the  right  to  vote. 

55.  In  those  districts  in  which  there  is  to  be  chosen  only 
one  deputy  there  shall  be  appointed  eleven  electors,  and 
in  those  in  which  two  or  more  are  to  be  chosen  there 
shall  be  appointed  twenty-one  electors. 

56.  The  doubts  or  controversies  that  may  arise  as  to 
whether  any  person  or  persons  possess  the  qualification  of 
voters  shall  be  decided  verbally  by  the  assemby,  and  its 
decision  shall  be  executed  without  appeal,  for  this  time 
only ;  provided,  that  such  doubt  shall  not  hinge  upon  the 
provisions  of  this  constitution  or  other  law.  Should  there 
be  a  tie  in  resolving  the  doubt  absolutory  sentence  shall 
be  given. 

57.  Should  complaint  arise  that  bribery,  corruption,  or 
force  had  been  used  to  determine  the  election  in  favor  of 
particular  persons,  a  public  and  verbal  investigation  shall 
be  made  of  the  matter,  and  should  it  appear  that  the  accu- 
sation is  true,  those  who  have  committed  the  crime  shall  be 
deprived  of  all  voice  in  the  election,  and  false  accusers  shall 
suffer  the  same  penalty;  and  from  this  judgment  there 
shall  be  no  appeal.  Doubts  which  arise  as  to  the  quality  of 
proof  shall  be  decided  by  the  Assembly,  in  the  manner  pre- 
scribed in  the  preceding  article. 

58.  Municipal  assemblies  shall  be  held  with  open  doors 
and  without  any  guard  whatever ;  and  no  individual,  what- 
ever his  class  may  be,  shall  attend  them  armed. 

59.  On  completion  of  the  two  days  for  which  the  election 
is  to  be  kept  open,  the  president,  tellers,  and  secretary  of 
each  assembly  shall  proceed  to  sum  up  the  votes  in  the  reg- 
ister, which  each  citizen  has  received,  which  shall  be  signed 
by  the  said  officers  ;  and  by  this  operation  the  assembly 
shall  be  dissolved  ;  and  other  acts  which  may  be  done  shall 
not  only  be  considered  null,  but  as  an  attempt  against  the 
public  security.  The  said  register  shall  be  delivered  sealed 
to  the  secretary  of  the  respective  Ayuntamientos. 

60.  On  the  second  Sunday  of  said  month  of  August  the 
Ayuntamientos  shall   convene   in  their  respective   halls  in 


LEGISLATIVE    DATA.  543 

public  session.  In  their  presence,  and  with  the  assistance 
of  the  president,  tellers,  and  secretary  of  the  municipal 
assemblies,  the  registers  shall  be  opened,  and  after  all  of 
them  have  been  examined,  a  general  list  shall  be  formed  in 
alphabetical  order,  in  which  shall  be  comprehended  all  the 
individuals  voted  for,  and  the  number  of  votes  they  have 
received. 

61.  This  list  and  the  certificate  which  shall  be  extended 
on  the  subject,  shall  be  signed  by  the  president  of  the 
Ayuntamiento,  the  secretary  of  it,  and  the  secretaries  of 
the  assemblies.  After  which,  two  copies  of  the  said  list 
shall  be  drawn  off  and  certified  by  the  same  persons,  one 
of  which  shall  be  immediately  posted  up  in  the  next  public 
place,  and  the  other  shall  be  delivered,  with  the  accompa- 
nying official  letter  of  the  Ayuntamiento,  to  two  individuals 
appointed  by  that  body  to  proceed  to  the  capital  of  the 
district  and  there  form  a  general  classification  of  the  votes 
jointly  with  the  commissioners  of  the  other  Ayuntamientos. 

62.  On  the  fourth  Sunday  in  August  the  commissioners 
of  the  Ayuntamientos  shall  present  themselves  with  their 
credentials  to  the  political  chief,  or,  in  his  absence,  to  the 
first  alcalde  of  the  capital  of  the  district ;  and,  presided  by 
the  first  or  by  the  second,  as  the  case  may  be,  shall  assemble 
ill  public  session  in  the  town  hall ;  and,  after  examining  all 
the  lists,  they  shall  form  a  general  list  of  all  the  individuals 
voted  for  as  electors  of  the  district  by  the  citizens  of  each 
municipal  district  respectively,  expressing  the  number  of 
votes  they  have  had  and  the  place  of  their  residence. 

63.  In  order  to  make  this  general  regulation  of  votes, 
the  concurrence  of  not  less  than  four  of  the  commissioners 
is  requisite.  In  those  districts  in  which  there  is  not  that 
number,  the  Ayuntamiento  of  the  capital  shall  name  from 
amongst  the  individuals  of  his  own  body  the  number  de- 
ficient. 

64.  The  citizens  who,  upon  the  result  of  this  general 
scrutiny,  shall  be  found  to  have  the  greatest  number  of 
votes  on  the  list,  shall  be  considered  chosen  constitutionally 
as  electors.  In  case  of  a  tie  between  two  or  more  candi- 
dates, it  shall  be  decided  by  lot. 


544  BENCH  AND  BAR  OF  TEXAS. 

65.  The  aforesaid  list,  and  all  acts  relating  to  the  business, 
shall  be  attested  by  the  president,  the  commissioners,  and 
the  secretary  of  the  Ayuntamiento  of  the  capital  of  the 
district.  Extracted  copies  of  the  one  and  the  other  au- 
thenticated by  the  same  individuals  shall  be  forwarded  by 
the  president  to  the  permanent  deputation  of  Congress,  the 
Governor  of  the  State,  and  the  different  municipalities  of 
the  district. 

Q6.  The  same  president  shall  present,  without  any  delay, 
the  corresponding  certificate  to  the  electors  appointed,  that 
they  may  go  to  the  capital  of  the  department  on  the  day 
appointed  by  the  Constitution,  in  order  to  celebrate  the 
electoral  assembly  of  the  same. 

PARAGRAPH   SECOND DISTRICT    ELECTORAL   ASSEMBLIES. 

67.  The  electoral  assemblies  of  the  district  shall  be  com- 
posed of  the  electors  named  by  the  citizens  in  the  munici- 
pal assemblies,  who  shall  assemble  in  the  capital  of  the 
respective  districts  with  a  view  of  choosing  the  deputy  or 
deputies  required  to  assist  in  Congress  as  the  representa- 
tives of  the  State. 

68.  Said  assemblies  shall  be  holden  at  the  expiration 
of  fifteen  days  from  making  the  general  regulation  of  votes 
mentioned  in  article  sixty-two,  the  electors  convening  in  the 
town  halls  or  in  the  building  considered  most  appropriate 
for  so  solemn  an  act,  with  open  doors  and  without  a  guard, 
and  no  person  of  whatever  class  shall  appear  armed  in  said 
assemblies. 

69.  They  shall  be  presided  over  by  the  police  chief,  and 
in  his  default,  by  the  first  alcalde  of  the  capital  of  the  dis- 
trict, commencing  their  sessions  by  choosing  from  their 
own  body,  hy  majority  of  vote,  a  secretary  and  two  tellers ; 
the  president  shall  then  cause  the  credentials  of  the  electors 
to  be  read,  which  shall  be  the  official  letters  wherein  they 
are  notified  of  their  appointment. 

70.  The  president  shall  then  inquire  if  there  be  any  legal 
nullity  on  the  part  of  any  elector  for  his  being  such  ;  and 
should  it  be  proved  in  the  act  that  there  is,  the  elector 
shall  lose  the  right  of  voting.     The  president  shall  after- 


LEGISLATIVE    DATA.  545 

wards  also  inquire  if  any  bribery,  subornation,  or  force 
has  been  used  for  the  election  of  any  particular  person, 
and  should  it  be  proved  in  the  act  that  there  has,  the  delin- 
quents shall  be  deprived  of  a  voice,  active  and  passive,  and 
false  accusers  shall  suffer  the  same  penalty.  Doubts  that 
arise  in  either  case  shall  be  decided  by  the  assembly  in  the 
manner  mentioned  in  article  fifty-six. 

71 .  The  electors  present  shall  then  immediately  proceed 
to  rhake  choice  of  the  deputy  or  deputies  corresponding  to 
the  district,  and  they  shall  be  elected  one  by  one,  by  secret 
scrutiny,  by  means  of  slips  which  each  elector  shall  deposit 
in  an  urn  placed  upon  a  table  at  the  foot  of  a  crucifix, 
after  being  sworn  before  the  same,  and  by  the  president, 
that  for  deputies  to  the  Congress  of  the  State,  he  will  give 
his  vote  for  those  citizens  who  in  his  opinion  possess  the 
qualifications  of  integrity,  probity,  and  well  known  adher- 
ence to  the  cause  of  the  national  independence. 

72.  On  conclusion  of  the  voting,  the  president,  tellers 
and  secretary  shall  examine  the  votes,  and  the  candidate 
who  received  more  than  one-half  of  the  votes  shall  be 
deputy,  constitutionally  elected,  the  president  declaring 
such  election.  Should  no  one  have  received  the  absolute 
majority,  the  two  highest  candidates  shall  be  run  in  a 
second  balloting.  Should  more  than  two  persons  have 
received  a  like  respective  majority,  they  shall  all  be  run  in 
the  second  balloting,  and  the  same  shall  be  done  when  on 
one  has  received  said  majority,  but  all  an  equal  number 
of  votes.  In  all  these  cases  the  candidate  securino-  the 
majority  of  votes  shall  be  elected ;  should  there  be  a  tie, 
the  balloting  shall  be  reported  once  only,  and  should  there 
still  be  a  tie,  it  shall  be  decided  by  lot. 

73.  Should  one  individual  only  have  received  the  re- 
spective majority,  and  two  or  more  persons  an  equal  number 
of  votes,  but  greater  than  that  of  all  the  others,  to  decide 
which  of  them  shall  run  in  a  second  balloting  with  the 
former,  there  shall  be  a  second  balloting  between  them, 
and  the  one  who  should  receive  the  most  votes  shall  enter 
in  competition  with  the  candidate  who  i-^ceived  the  re- 
spective majority.    In  case  of  a  tie  the  balloting  shall  be 

35 


546  BENCH  AND  BAR  OF  TEXAS. 

repeated,  and  should  there  still  be  a  tie,  it  shall  be  decided 
by  lot.  In  the  second  balloting  between  the  one  who 
received  the  respective  majority  over  all  the  candidates 
and  his  rival,  the  provision  made  in  the  last  part  of  the 
preceding  article  shall  be  observed. 

74.  When  one  person  only  has  received  the  respective 
majority,  and  all  the  rest  an  equal  number  of  votes,  to 
determine  which  of  the  latter  shall  enter  in  competition 
in  a  second  balloting  with  the  former,  the  entire  provision 
made  in  the  preceding  article  with  this  view,  in  respect  to 
those  between  whom  there  was  a  tie,  shall  be  executed  ; 
and  to  determine  which  of  the  rival  candidates  shall  be 
elected  deputy,  the  provision  of  the  last  part  of  said  article 
shall  be  observed. 

75.  The  election  of  deputies  proper  having  closed,  that 
of  the  substitutes  shall  immediately  follow  in  the  same 
method  and  form,  and  the  latter  having  also  terminated,  a 
list  containing  the  names  of  all  the  deputies  elected,  signed 
by  the  secretary  of  the  respective  assembly,  shall  be  imme- 
diately posted  in  the  most  public  place.  The  electoral  act 
shall  be  signed  by  the  president  and  all  the  electors;  and 
the  former,  the  secretary  and  tellers  shall  forward  copies, 
substantiated  by  themselves,  to  the  permanent  deputation 
of  Congress,  to  the  Governor  of  the  State  and  to  all  the 
Ayuntamientos  of  the  district.  Said  assemblies,  as  soon 
as  they  have  performed  the  acts  pointed  out  in  this  law, 
shall  immediately  dissolve,  and  any  other  in  which  they 
interfere  shall  be  null,  and,  furthermore,  reputed  an  offense 
against  the  public  safety. 

76.  The  president  shall  also  seasonably  dispatch  the  cor- 
responding official  letter  to  the  deputies  proper  and  substi- 
tutes, accompanied  by  an  attested  copy  of  the  act,  to  serve 
them  as  a  credential  of  their  election. 

77.  No  citizen  shall  decline  discharging,  from  any  causti 
or  pretext,  the  duties  mentioned  in  this  section. 

SECTION   THREE  —  OF   THE  SESSIONS  OF  CONGRESS. 

78.  The  Congress  shall  assemble  each  year,  to  hold  its 
sessions  in  the  place  which  shall  be  designated  by  law,  and 


LEGISLATIVE    DATA.  547 

in  the  building  which  is  destined  for  this  object.  When- 
ever it  may  be  deemed  convenient  to  change  it  to  another 
phice,  it  can  be  done  with  the  accordance  of  two-thirds  of 
tlie  whole  number  of  the  deputies. 

79.  The  deputies  shall  present  their  credentials  to  the 
permanent  deputation  of  Congress,  in  order  that  they  may 
examine  them,  by  comparing  them  with  the  testimonies  of 
the  elections  of  the  electoral  assemblies  of  the  district. 

80.  On  the  28th  day  of  the  month  of  December,  of  the 
year  anterior  to  the  renovation  of  Congress,  the  newly 
elected  deputies  and  the  members  of  the  permanent  depu- 
tation shall  meet  in  public  session,  and  shall  choose  their 
president  and  secretary  from  the  said  deputation.  This 
meeting  shall  report  as  to  the  legitimacy  of  the  credentials 
and  qualitications  of  the  deputies,  and  any  doubts  that  may 
arise  on  these  points  shall  be  definitely  determined  by  a 
majority  vote  in  this  assembly;  but  the  individuals  of  the 
permanent  deputation  who  have  not  been  re-elected  shall 
not  have  a  vote. 

81.  Furthermore,  the  deputies  shall  take  before  the  presi- 
dent an  oath  that  they  will  observe,  and  cause  to  be 
observed,  the  constitutive  act  and  the  Federal  Constitution 
of  the  United  States  of  Mexico,  and  the  Constitution  of  the 
State,  and  that  they  will  completely  discharge  their  duties. 

82.  In  continuation,  the  deputies  shall  then  proceed  to 
choose  from  amongst  themselves,  by  secret  ballot,  and  by 
an  absolute  plurality  of  votes,  a  president,  vice-president, 
and  two  secretaries,  upon  which  the  permanent  deputation 
shall  cease  in  all  its  functions,  and  those  of  its  members 
not  re-elected,  having  retired,  the  president  of  Congress 
shall  declare  that  it  is  solemnly  and  legitimately  constituted. 

83.  For  the  celebration  of  the  ordinary  and  extraordinary 
sessions  of  Congress,  the  deputies  shall  meet  four  days  pre- 
vious to  its  organization,  in  the  manner  prescribed  in  the 
first  part  of  article  eighty,  in  order  to  resolve  in  the  man- 
ner expressed  in  the  second  part  of  the  same  article  upon 
the  legitimacy  of  the  credentials  and  qualifications  of  the 
new  deputies  who  present  themselves  ;  and  having  approved 
of  them,  the  deputies  shall  immediately  take  the  oath  pre- 


548  BENCH  AND  BAR  OF  TEXAS. 

scribed  by  article  eighty-one,  and  shall  then  proceed  to 
make  nomination  of  president,  vice-president,  and  secreta- 
ries, in  the  same  manner  as  is  provided  in  article  eighty- 
two. 

84.  The  Congress  shall  open  its  ordinary  sessions  on  the 
first  day  of  January  in  every  year,  and  on  the  first  day  of 
September  in  each  year  following  the  renovation  of  the 
same  Congress  ;  the  Governor  of  the  State  being  obliged  to 
assist  upon  so  important  an  occasion,  when  he  shall  pro- 
nounce a  suitable  discourse,  which  the  president  of  Con- 
gress shall  answer  in  general  terms. 

85.  On  the  day  after  the  opening  of  the  ordinary  session, 
the  Governor  shall  present  in  person  to  Congress  a  written 
account  of  the  state  of  the  public  administration,  propos- 
ing such  amendments  or  reforms  as  may  be  required  in  its 
different  branches. 

86.  The  session  of  Congress  shall  be  held  daily,  without 
other  interruption  than  those  of  solemn  festivals.  All  the 
proceedings  shall  be  public,  with  the  exception  of  those 
requiring  reserve,  which  may  be  secret. 

87.  The  ordinary  sessions  of  Congress,  commencing  on 
the  first  of  Januar}'^,  shall  continue  for  that  month,  and  the 
three  following,  February,  March  and  April,  and  shall  not 
be  prorogued  to  any  other  month,  except  in  the  two  follow- 
ing instances:  first,  by  petition  of  the  Governor;  and 
secondly,  if  the  same  Congress  deem  it  necessary  —  for 
which  there  must  be  the  concurrence,  in  both  cases,  of  two- 
thirds  of  tlie  deputies.  The  ordinary  sessions,  which  com- 
mence on  the  first  of  September,  shall  last  thirty  days  of 
said  month,  and  shall  not  be  prorogued  upon  any  motion  or 
pretext  whatever.  Both  sessions  shall  be  closed  with  the 
same  formalities  which  are  prescribed  for  their  opening. 

88.  Before  the  conclusion  of  the  ordinary  session  of  Con- 
gress there  shall  be  appointed  a  deputation  of  that  body 
consisting  of  three  members  proper  and  one  substitute, 
which  shall  continue  all  the  intervening  time  between  one 
ordinary  session  and  the  other,  and  its  president  shall  be 
the  individual  first  appointed,  and  its  secretary  the  last 
proprietary  individual  named. 


LEGISLATIVE    DATA.  549 

89.  When  in  the  intervening  time  between  one  ordinary 
session  and  another,  circumstances  or  business  shall  occur 
requiring  the  meeting  of  Congress,  it  can  be  convoked  in 
extraordinary  sessions,  provided  it  is  sanctioned  by  the 
unanimous  vote  of  two-thirds  of  the  members  of  the  per- 
manent deputation  and  of  the  council  of  government,  which, 
shall  meet  for  that  purpose. 

90.  If  the  circumstances  or  business  which  caused  the 
extraordinary  convocation  of  Congress  should  be  very 
mighty  and  urgent,  the  permanent  deputation,  united  with 
the  council  of  government  and  the  other  deputies,  who  are 
in  the  capital,  shall  immediately  take  such  necessary  meas- 
ures as  the  exigencies  shall  require,  and  shall  give  an  ac- 
count thereof  to  Congress  as  soon  as  it  may  meet. 

91.  When  Congress  meets  in  extraordinary  sessions,  there 
shall  called  to  the  same  the  deputies  who  ought  to  assist  at 
the  ordinary  sessions  of  that  year,  and  they  shall  be  exclu- 
sively occupied  upon  the  subject  or  subjects  mentioned 
in  the  letter  of  convocation ;  but  if  they  have  not  concluded 
by  the  day  on  which  they  ought  to  meet  in  ordinary  ses- 
sions, they  shall  postpone  those  and  continue  the  business 
for  which  the  ordinary  session  had  been  convoked. 

92.  The  holding  of  the  extraordinary  sessions  shall  not 
impede  the  election  of  the  new  deputies  at  the  time  pre- 
scribed in  this  Constitution. 

93.  The  extraordinary  sessions  shall  be  opened  and 
closed  with  the  same  solemnities  as  the  ordinary  sessions. 

94.  The  resolutions  which  Congress  may  take  upon  the 
change  of  its  residence,  or  the  prorogations  of  its  sessions, 
shall  be  executed  by  the  Governor  without  any  observations 
upon  them. 

95.  The  Congress,  in  all  that  belongs  to  its  government 
and  internal  order,  shall  observe  the  regulations  formed  by 
the  present  Congress,  having  power  to  make  reforms  it 
may  deem  necessary. 

96.  The  deputies  shall  be  renewed  totally  every  two 
years.  Those  of  the  interior  Congress  can  be  rechosen, 
but  they  can  not  be  compelled  to  accept  this  trust  unless 
there  should   be  a  vacancy   of  one-half  of  the   deputation. 


550  BENCH  AND  BAR  OF  TEXAS. 

There  shall  be  excepted  in  this  article  the  deputies  of  the 
present  Congress,  who  can  not  be  re-elected  for  the  next 
constitutional  Congress. 

SECTION  FOURTH THE  ATTRIBUTES  OF  CONGRESS. 

97.  The  exclusive  prerogatives  of  Congress  are  :  First.  To 
decree,  interpret,  amend  and  repeal  the  laws  relating  to 
the  administration  and  internal  government  of  the  State  in 
all  its  branches.  Secondly.  To  regulate  the  votes  which  the 
citizens  may  have  obtained  in  the  electoral  assemblies  for 
Governor,  Vice-Governor,  and  for  members  of  the  council 
of  government,  and  to  appoint  those  officers  when  ever  it 
shall  devolve  upon  it  to  do  so.  Thirdly.  To  decideby  secret 
ballot  the  ties  that  may  occur  between  two  or  more  individ- 
uals in  elections  to  these  trusts.  Fourthly.  To  resolve  the 
doubts  which  may  arise  upon  these  elections  and  upon  the 
qualifications  of  those  elected.  Fifthly.  To  examine  the  ex- 
cuses which  the  elected  may  allege  for  not  accepting  those 
stations  and  to  determine  them  as  it  may  think  proper. 
Sixthly.  To  form  itself  into  a  grand  jury  and  declare  whether 
there  are,  or  are  not,  grounds  of  accusation  for  neglect  of 
official  duty,  as  well  as  for  ordinary  crimes,  against  the 
deputies  of  Congress,  the  Governor,  the  Vice-Governor, 
the  members  of  the  council,  the  Secretary  of  the  State  and 
the  members  of  the  supreme  tribunal  of  justice.  Seventhly. 
To  render  effective  the  responsibility  of  these  public  func- 
tionaries, and  to  do  in  this  case  that  which  is  necessary  in 
regard  to  all  others  in  public  office.  Eighthly.  To  fix  every 
year  the  public  expenses  of  the  State,  having  in  view  the 
reports  on  the  subject  which  shall  be  presented  by  the  Gov- 
ernor. Ninthly.  To  establish  or  confirm  the  taxes  or  contri- 
butions necessary  to  meet  these  expenses  under  the  regu- 
lations of  this  constitution,  and  that  of  the  federation  — 
to  regulate  their  collection,  determine  their  application,  and 
approve  their  distribution.  Tenthly.  To  examine  and  ap- 
prove the  accounts  of  the  application  of  all  public  funds  of  the 
State.  Eleventhly.  To  contract  debts  in  case  of  necessity 
upon  the  credit  of  the  State  and  to  designate  the  guarantee 
for  their  liquidation.     Twelfthly.  To  decree  whatever  may 


LEGISLATIVE    DATA.  551 

be  necessary  for  the  administration,  preservation  and  aliena- 
tion of  tlie  property  of  the  Sttite.  Thirteenthly.  To  create, 
suspend  or  suppress  the  public  offices  of  the  State,  and  to 
fix,  augment  or  diminish  their  salaries  or  pensions.  Four- 
teenthly .  To  grant  premiums  or  recompenses  to  corporations 
or  persons  who  may  have  rendered  distinguished  services 
to  the  State,  and  to  decree  public  honors  to  the  posthumous 
memory  of  great  men.  Fifteenthly.  To  regulate  the  manner 
of  recruiting  the  men  which  may  be  necessary  for  the  ser- 
vice, or  to  fill  the  companies  of  presidential  militia,  com- 
panies of  cavalry,  and  the  active  militia  of  the  same  army, 
auxiliary  to  that  which  is  destined  for  the  defense  of  the 
State  by  their  institution,  and  approve  of  the  distribution 
which  may  be  made  among  the  tow^ns  of  the  State  of  their 
respective  quotas,  to  effect  this  object.  Sixteenthly.  To  de- 
cree that  which  may  be  necessary  for  the  enrollino-  and 
instruction  of  the  civic  militia  of  the  State,  and  the  appoint 
ment  of  its  officers  conformably  to  the  discipline  prescribed, 
or  which  may  be  hereafter  prescribed  by  general  laws. 
Seventeenthly.  To  promote  and  encourage  by  laws,  public 
information  and  education,  and  the  progress  of  the  sciences, 
arts,  and  useful  establishments,  removing  the  obstacles 
which  may  palsy  objects  so  commendable.  Eighteenthly. 
To  protect  the  political  liberty  of  the  press.  Nineteenthly. 
To  intervene  and  give  or  withhold  its  consent  to  all  those 
acts  and  cases  for  which  this  Constitution  has  provided. 

98.  The  attributes  of  the  permanent  deputation  are  :  First . 
To  watch  over  the  observance  of  the  constitutive  act,  Con- 
stitution and  general  laws  of  the  Union,  and  the  particular 
ones  of  the  State,  in  order  to  give  an  account  to  Congress 
of  any  infractions  it  may  have  observed.  Second.  To  con- 
voke the  Congress  for  extraordinary  sessions  in  those  cases, 
and  in  the  manner  described  by  this  Constitution.  Third. 
To  discharge  the  functions  which  are  prescribed  in  articles 
seventy-nine  and  eighty.  Fourth.  To  give  notice  to  the  super- 
numeraries of  the  time  when  they  shall  come  to  the  Congress 
in  the  place  of  the  proprietary  deputies  ;  and  if  the  death 
or  absolute  inability  of  one  or  more  of  them  should  occur,  to 


552  BENCH  AND  BAR  OF  TEXAS. 

communicate  the  corresponding  orders  to  the  respective 
districts,  in  order  that  they  may  proceed  to  anew  election. 
Fifth.  To  receive  the  testimonies  of  the  acts  of  the  electors 
of  the  electoral  district  assemblies  for  Governor,  for  Vice- 
Governor,  and  members  of  the  council  of  government,  and 
to  deliver  them  to  Congress  as  soon  as  it  is  installed. 

SECTION  FIFTH FORMATION  AND  PROMULGATION  LAWS. 

99.  The  form,  internals,  and  mode  of  proceeding  in  dis- 
cussing and  voting  on  projects  of  law  or  decree  shall  be 
provided  in  the  internal  rules  of  Congress. 

100.  No  project  of  law  or  decree  that  should  be  rejected 
according  to  the  rules  shall  be  again  proposed  until  the 
ordinary  sessions  of  the  year  following;  but  this  shall  not 
prevent  any  one  or  more  of  their  articles  from  forming  a 
part  of  other  projects  which  have  not  been  rejected. 

101.  One  more  than  the  half  of  the  entire  number  of 
deputies  shall  form  a  quorum  for  dictating  measures  and 
steps  not  possessing  the  character  of  law  or  decree.  For 
discussing  and  voting  upon  projects  of  law  or  decree,  and 
dictating  orders  of  great  importance,  the  concurrence  of 
two-thirds  of  the  members  shall  be  required. 

102.  Should  a  project  of  law  or  decree,  after  being  dis- 
cussed, be  approved  it  shall  be  communicated  to  the 
Governor,  who,  should  he  also  approve  it,  shall  immedi- 
ately proceed  to  promulgate  and  circulate  the  same  with  the 
corresponding  formalities  ;  but  should  he  not,  he  may  make 
thereon  such  observations  as  he  may  deem  proper,  pre. 
viously  hearing  the  counsel,  and  shall  return  the  same,  with 
his  remarks,  to  Congress  within  ten  available  days,  reckoned 
from  its  reception. 

103.  The  projects  of  law  or  decree  returned  by  the  Gov- 
ernor, according  to  the  preceding  article,  shall  be  discussed 
the  second  time,  and  the  public  speaker,  whom  the  executive 
should  designate,  may  attend  the  discussion.  Should  they 
be  approved  by  two-thirds  of  the  members  present  in  this 
second  discussion  they  shall  be  again  communicated  to  the 
Governor,  who,  without  objecting,  shall   immediately  pro- 


LEGISLATIVE    DATA.  553 

ceed  to  their  formal  promulgation  and  circulation;  but 
should  the  said  projects  not  be  approved  in  this  form  they 
can  not  be  again  proposed  until  the  session  of  the  year 
following. 

104.  Should  any  project  of  law  or  decree  not  be  returned 
by  the  Governor  within  the  time  assigned  in  article  one 
hundred  and  two  it  shall  be  considered  from  that  very  fact 
as  sanctioned,  and  shall  be  promulgated  accordingly,  unless 
Congress  should  have  closed  or  suspended  its  sessions  for 
that  term,  in  which  case  it  shall  be  returned  on  the  first  day 
of  the  next  session. 

105.  Laws  shall  be  repealed  with  the  same  formalities, 
and  by  the  same  steps  as  they  are  established. 

ELECTION  OF  DEPUTIES  TO  THE  GENERAL  CONGRESS. 

106.  The  electonU  district  assemblies,  on  the  same  dajs 
and  in  the  same  method,  as  they  are  required  to  perform 
the  election  of  deputies  to  the  State  Congress,  shall  pro- 
ceed to  elect  the  individuals  who  are  to  choose  the  deputies 
to  the  General  Congress,  choosing,  for  every  seven  thousand 
souls,  one  person  possessing  the  qualifications  required  by 
article  fifty-three  of  this  Constitution.  In  districts  wherein 
there  proves  to  be  an  excess  of  population  of  more  than  three 
thousand  five  hundred  souls,  for  this  fraction  another  elec- 
tor shall  be  chosen,  and  in  those  of  which  the  population 
does  not  amount  to  seven  thousand,  one  shall  be  chosen 
notwithstanding.  The  election  having  closed  said  juntas 
shall  forward  a  certified  copy  of  their  act  to  the  Vice-Gov- 
ernor  of  the  State,  and  also  a  corresponding  attested  copy 
to  each  person  elected,  to  serve  him  as  a  credential. 

107.  The  electors  thus  chosen  shall  repair  to  the  capital 
of  the  State,  where  they  shall  present  themselves  to  the 
Vice-Governor,  or  person  acting  in  his  stead,  and  convening 
under  the  presidence  of  either,  three  days  previous  to  the 
first  Sunday  of  October,  in  public  session,  in  the  building 
they  consider  the  most  appropriate,  they  shall  choose  from 
among  themselves  two  tellers  and  a  secretary  that  they  may 
examine  the  credentials,  and  report  on  the  day  following 


554  BENCH    AND    BAR    OF    TEXAS. 

whether  or  not  they  are  in  conformity  to  law.  A  committee 
of  three  persons  shall  likewise  be  appointed,  to  examine 
the  credentials  of  the  secretary  and  tellers. 

108.  On  the  following  day  they  shall  again  assemble,  the 
minutes  shall  be  read,  and  should  any  defect  be  found  in 
the  credentials  or  qualifications  of  the  electors,  the  meeting 
shall  decide  without  adjourning,  and  the  resolutions  thereof 
shall  be  carried  into  eifect  without  appeal,  for  that  time  and 
case  only,  it  being  understood  that  the  doubt  can  not  turn 
upon  any  provision  in  this  or  any  other  law. 

109.  On  the  first  Sunday  of  the  aforementioned  month 
of  October,  the  electors  having  convened,  and  one  more 
than  half  of  them  all  being  present,  they  shall  proceed  in 
the  form  provided  by  this  Constitution  for  the  election  of 
deputies  to  the  State  Congress,  to  the  election  of  those  who 
are  to  represent  the  State  in  the  General  Congress.  This 
having  been  concluded,  the  meeting  shall  make  the  proper 
provision  for  complying  with  article  seventeen  of  the  Federal 
Constitution,  and  it  shall  then  dissolve. 

TITLE  II. 

EXECUTIVE  POWER  OF  THE  STATE. 
SECTION    FIRST THE    GOVERNOR. 

110.  The  Governor  of  the  State  shall  possess  the  follow- 
ing qualifications  at  the  time  of  his  election  :  First.  He 
shall  be  a  citizen  in  the  exercise  of  his  rights.  Second. 
Bornintheterritory  of  the  Republic.  Third.  Thirty  years  of 
age  complete.  Fourth.  An  inhabitant  of  this  State,  having 
resided  five  years  therein,  two  of  which  immediately  pre- 
ceded the  election. 

111.  Ecclesiastics,  military  and  other  officers  of  the 
Republic,  in  actual  service,  can  not  obtain  the  office  of 
Governor. 

112.  The  Governor  of  the  State  shall  continue  four  years 
in  the  discharge  of  his  office,  and  can  not  be  re-elected  to 
the  same  office,  except  in  the  fourth  year  after  having  ceased 
the  functions  of  his  office. 


LEGISLATIVE    DATA.  555 

113.  The  prerogatives  of  the  Governor,  his  attributes, 
and  the  restrictions  of  his  powers,  shall  be  as  follows :  — 

PREROGATIVES  OF  THE  GOVERNOR. 

First.  The  Governor  may  make  observations  upon  the 
laws  and  decrees  of  Congress  in  the  manner  and  form  pre- 
scribed by  article  one  hundred  and  two,  suspending  their 
publication  until  said  Congress  resolves  thereon,  unless  in 
cases  excepted  by  this  Constitution.  Second.  He  may  pro- 
pose to  Congress  such  laws  or  amendments  as  he  thinks 
conducive  to  the  general  good  of  the  State.  Third.  He  ma}' 
pardon  delinquents  conformably  to  law.  Fourth.  He  can- 
not be  accused  for  any  crime  whatever,  committed  during 
his  term  of  ofl&ce,  and  one  year  after,  reckoned  from  the 
date  whereon  he  ceased  in  his  functions,  except  before 
Congress,  and  after  the  expiration  of  that  time,  not  even 
before  Congress. 

ATTRIBUTES    OF   THE    GOVERNOR. 

First,  To  take  care  that  the  internal  order  and  tranquility 
of  the  State  be  preserved,  and  its  safety  without  —  for  both 
objects  disposing  of  the  militia  of  the  State,  of  which  he 
shall  be  commander-in-chief  throughout  the  Territory. 
Second.  To  see  that  the  constitutive  act,  the  Federal  and 
State  Constitutions,  the  laws,  decrees  and  orders  of  the 
general  government,  and  of  the  Congress  of  said  State, 
be  fulfilled,  issuing  the  proper  orders  and  decrees  for  their 
execution.  Third.  To  form,  with  the  advice  of  the  council, 
such  instructions  and  regulations  as  he  deems  necessary  for 
the  better  government  of  the  departments  of  the  public 
administration  of  the  State,  which  he  shall  transmit  to  Con- 
gress for  approval.  Fourth.  To  appoint  agreeably  to  the 
constitution  and  laws,  all  the  officers  of  State,  not  chosen 
by  the  people,  or  otherwise  provided  by  law.  Fifth.  To 
freely  appoint  and  remove  the  Secretary  of  State.  Sixth. 
To  see  that  justice  is  fully  and  promptly  administered  by 
the  tribunals  and  courts  of  the  State,  and  that  their  judg- 
ments are  executed.  Seventh.  To  take  care  of  the  admin- 
istration and  collection  of  all  the  State   rents,  and  decree 


556  BENCH  AND  BAR  OF  TEXAS 

their  disposition  according  to  law.  Eighth.  To  suspend 
from  office,  as  long  as  three  months,  and  deprive  of  even 
one-half  their  salary  for  the  same  length  of  time,  after 
having  the  advice  of  the  council,  all  officers  of  the  execu- 
tive department  for  violating  his  orders  or  decrees,  trans- 
mitting the  data  on  the  subject  to  the  respective  tribunal, 
should  he  think  there  is  a  just  ground  of  action.  Ninth, 
To  propose  to  the  standing  deputation,  whenever  he  thinks 
proper,  after  hearing  the  advice  of  the  council,  the  conven- 
ing of  Congress  to  extra  session. 

RESTRICTIONS    OF    THE    POWERS    OF  THE    GOVERNOR. 

The  Governor  shall  not  have  power:  First.  To  command 
the  civic  militia  of  the  State  in  person  without  the  express 
consent  of  Congress,  or,  during  its  recess,  of  the  permanent 
deputation.  Whenever  he  commands  the  said  militia  on 
the  aforesaid  condition  the  Vice-Governor  shall  discharge 
the  duties  of  Governor.  Second.  To  interfere  in  the  ex- 
amination of  causes  pending,  or  dispose  in  any  manner  of 
the  persons  of  those  accused  in  criminal  cases,  during  the 
trial.  Third.  To  deprive  any  one  of  his  liberty,  or  impose 
punishment  upon  him ;  but  when  the  well  being  and  safety 
of  the  State  require  the  arrest  of  any  person,  he  may  effect 
it  on  condition  of  putting  the  person  arrested,  within  forty- 
eight  hours,  at  the  disposal  of  a  competent  tribunal  or 
judge.  Fourth.  To  take  possession  of  the  property  of  any 
private  individual  or  corporation,  or  disturb  him  in  the  pos- 
session, use,  or  benefit  of  the  same,  unless  it  should  be 
necessary  for  a  purpose  of  manifest  public  utility  in  the 
judgment  of  the  executive  council,  in  which  case  he  may  do 
so  with  the  concurrence  of  the  council,  the  approval  of 
Congress,  and,  during  the  recess,  of  the  permanent  deputa. 
tion,  always  indemnifying  the  party  interested  agreeably  to 
the  opinion  of  appraisers  chosen  jointly  by  the  executive 
and  the  said  party.  Fifth.  To  impede  or  embarrass  in  any 
manner,  or  under  any  pretense,  the  popular  elections  deter- 
mined by  this  Constitution  and  laws,  so  that  they  may  not 
have  their  entire  effect.  Sixth.  To  leave  the  capital  to  go 
to  any  other  part  of  the  State  for  a  longer  time  than  one 


LEGISLATIVE    DATA.  557 

month.  Should  he  require  a  longer  time,  or  should  he  be 
under  the  necessity  of  leaving  the  State,  he  shall  request 
license  from  Congress,  and,  during  recess,  from  the  perma- 
nent deputation. 

414.  For  publishing  the  laws  and  decrees  of  the  Congress 
of  the  State  the  Governor  shall  use  the  following  form  :  — 

"The  Governor  of  the  State  of  Coahuila  and  Texas,  to 
all  the  inhabitants  thereof :  Be  it  known,  that  the  Congress 
of  said  State  has  decreed  as  follows:  [The  original  words 
of  the  law  or  decree  to  be  here  inserted.]  Wherefore,  I 
command  it  to  be  printed,  published,  and  duly  fulfilled." 

SECTION    SECOND  —  VICE-GOVERNOR. 

115.  There  shall  likewise  be  a  Vice-Governor  in  the 
State,  having  the  same  qualifications  as  those  required  for 
Governor ;  his  term  of  office  four  years,  and  he  can  not 
be  re-elected  to  the  same  office  until  in  the  fourth  year  from 
having  ceased  in  his  functions. 

116.  The  Vice-Governor  shall  preside  over  the  council, 
but  without  having  any  vote  except  in  case  of  a  tie.  He 
shall  also  be  the  police  chief  of  the  department  of  the 
capital ;  and  when  he  officiates  as  Governor  the  office  of 
political  chief  shall  be  discharged  by  a  substitute  whom  he 
shall  appoint,  provisionally  with  the  approval  of  the 
council. 

117.  The  Vice-Governor  shall  discharge  the  functions  of 
Governor  during  the  vacancy  of  that  office,  or  when  the 
latter  in  the  opinion  of  Congress  or  the  permanent  deputa- 
tion, is  impeded  from  serving. 

118.  When  the  Vice-Governor  also  fails,  the  councilor 
whom  Congress  appoints  shall  act  in  the  place  of  Governor, 
Should  it  be  during  recess,  the  appointment  shall  be  made 
provisionally,  until  the  meeting  of  Congress,  by  the  per- 
manent deputation. 

119.  In  case  of  decease  or  absolute  impossibilitj'^  dur- 
ing th^  first  two  years  of  exercising  their  functions,  a  new 
Governor  or  Vice-Governor  shall  be  chosen  at  the  time  of 
holding  the  next  election  for  deputies  to  Congress. 


558  BENCH  AND  BAR  OF  TEXAS. 

120.  For  crimes  of  any  kind  whatever,  committed  dur- 
ing his  term  of  office,  the  Vice-Governor  can  be  accused 
only  before  Congress. 

SECTION   THIRD OF   THE   EXECUTIVE    COUNCIL 

121.  For  the  better  discharge  of  the  duties  of  his  office, 
the  Governor  shall  have  a  body  of  consultation  to  be  styled 
Executive  Council,  which  shall  be  composed  of  three  voters 
proprietary  and  two  substitutes,  of  whom  one  only  can  be 
an  ecclesiastic. 

122.  For  being  a  member  of  the  council  the  same  quali- 
fications shall  be  required  as  for  being  a  deputy.  Those  not 
eligible  as  deputies  can  not  be  councilors. 

123.  The  council  shall  be  renewed  every  two  years,  one 
voter  proper  and  one  substitute,  the  last  chosen,  retiring  in 
the  first  instance,  and  the  other  members  proper  and  the 
other  substitute,  in  the  second  instance,  and  so  on  succes- 
sively. 

124.  No  councilor  can  be  re-elected  until  the  fourth 
year  from  the  expiration  of  his  term  of  office. 

125.  When  the  Governor  attends  the  council  he  shall 
preside  without  having  a  vote,  and  in  that  case  the  Vice- 
Governor  shall  not  attend. 

126.  The  secretary  of  the  council  shall  be  one  of  the 
members  thereof,  in  the  manner  and  form  provided  in  its 
internal  rules,  which  the  council  itself  shall  form  and  pre- 
sent to  the  executive  who  shall  transniit  them  to  Congress 
for  approval. 

127.  The  attributes  of  the  council  shall  be  as  follows  :  — 
First.  To  give  the  Governor  a  written  report  in  all  busi- 
ness wherein  the  law  imposes  on  the  latter  the  duty  of 
requesting  the  same,  and  in  other  matters  wherein  the  Gov- 
ernor himself  thinks  proper  to  consult  said  body.  Second. 
To  watch  over  the  observance  of  the  constitutive  act.  Fed- 
eral Constitution,  general  laws  of  the  Union,  and  the 
particular  laws  of  the  State,  apprising  Congress  of  any 
violations  it  may  observe.  Third.  To  promote  the  estab- 
lishment of,  and  give  activity  to,  all  the  branches  of  pros- 
perity  of  the   State.     Fourth.  To  propose  nominations  of 


LEGISLATIVE    DATA.  559 

three  for  filling  those  offices  wherein  the  laws  exact  this 
requisite.  Fifth.  To  concur  with  the  permanent  deputation 
agreeable  to  article  eighty-nine,  on  the  convocation  of  Con- 
gress to  extra  session,  and  meet  with  said  deputation  for 
the  temporary  measures  that  may  be  necessary  in  those 
cases  mentioned  in  article  ninety.  Sixth.  To  explain  the 
accounts  of  all  the  public  funds,  and  transmit  them  to  Con- 
gress for  approval. 

128.  The  council  shall  be  responsible  for  all  acts  relating 
to  the  exercise  of  its  attributes. 

SECTION   FOURTH ELECTION  OF  GOVERNOR,  VICE-GOVERNOR 

AND  COUNCILORS. 

129.  On  the  day  following  the  election  of  deputies  to 
Congress  each  and  every  electoral  district  shall  chose  a 
Governor,  Vice-Governor,  three  councilors  proper  and  two 
substitutes,  holding  said  election  in  the  mode  and  manner 
prescribed  in  former  articles  of  this  Constitution. 

130.  Said  election  having  closed,  a  list  signed  by  the 
secretary  of  the  assembly,  confirming  the  names  of  the 
persons  elected  and  offices  for  which  they  were  chosen, 
shall  be  immediately  posted  in  the  most  public  place.  The 
acts  shall  be  signed  by  the  President  and  electors,  and  at- 
tested copies  thereof,  authorized  by  the  said  President, 
secretary  and  teller  shall  be  transmitted,  enclosed  in  a  cer- 
tified sheet,  to  the  standing  deputation. 

131.  On  the  day  the  first  ordinary  sessions  of  Congress 
are  opened,  the  ex-president  of  the  permanent  deputation 
shall  present  the  aforementioned  attested  copies,  and  after 
they  are  read,  Congress  shall  choose  a  committee  from  its 
own  body  to  which  they  shall  be  referred,  and  said  com- 
mittee shall  review  the  same  and  report  thereon  on  the 
third  day. 

132.  On  said  day  Congress  shall  proceed  to  determine 
the  elections  made  by  the  districts  and  compute  the  votes. 

133.  The  person  who  receives  the  absolute  majority  of 
votes  of  the  district  electoral  assemblies  to  be  computed 
according  to  the  whole   number  of  voters   composing  the 


560  BENCH  AND  BAR  OF  TEXAS. 

same,  shall  be  Governor,  Vice-Governor,  or  councilor,  as 
the  election  under  consideration  may  be. 

134.  Should  no  person  receive  the  aforesaid  majority 
Congress  shall  elect  for  said  offices  one  of  the  two  or  more 
individuals  having  the  highest  number  of  votes,  and  the 
same  shall  be  done  when  no  one  has  said  respective  major- 
ity, but  all  an  equal  number  of  votes. 

135.  Should  one  person  only  receive  the  respective  ma- 
jority, and  two  or  more  an  equal  number  of  votes,  but 
greater  than  that  of  all  the  others,  Congress  shall  elect  one 
individual  from  among  the  former  to  be  run  in  competition 
for  the  election  with  the  person  who  received  the  respective 
majority. 

136.  In  case  of  tie  the  balloting  shall  be  repeated  once 
only,  and  should  there  still  be  a  tie  it  shall  be  determined 
by  lot. 

137.  The  offices  of  Governor,  Vice-Governor  and  coun- 
cilors shall  be  discharged  in  preference  to  any  other  whatever 
in  the  State,  and  shall  necessarily  have  the  same  pref- 
erence among  themselves.  Those  elected  to  those  stations 
shall  take  possession  thereof  on  the  first  of  March,  and  they 
can  not  decline  serving  ;  except  the  deputies  to  Congress  at 
the  time  of  the  election,  and  those  who,  in  the  judgment  of 
Congress,  are  morally  or  physically  incompetent. 

138.  Should  the  Governor-elect,  from  any  cause,  not  be 
present  on  said  day  to  enter  on  the  performance  of  his 
functions,  the  Vice-Governor  newly  chosen  shall  enter  on 
the  discharge  of  the  duties  of  the  office,  and  should  he  be 
also  absent,  his  default  shall  be  supplied  agreeably  to  arti- 
cle one  hundred  and  eighteen. 

SECTION  FIFTH SECRETARY  OF  STATE. 

139.  The  dispatch  of  all  business  whatever  pertaining  to 
the  executive  department  of  the  State  shall  be  under  the 
charge  of  a  secretary  to  be  styled  —  Secretary  of  State. 

140.  For  holding  said  office,  it  shall  be  required  to  be  a 
citizen  in  the  exercise  of  his  rights,  over  twenty-five  years 
of  age,  a  native  of  this  Republic,  an  inhabitant  of  this  State, 


LEGISLATIVE    DATA.  561 

with  three  years'  residence  therein,  and  one  year  imme- 
diatel}'  preceding  his  election.  Ecclesiastics  can  not  hold 
said  office. 

141.  All  laws,  decrees,  orders,  regulations  and  instruc- 
tions circulated  to  the  towns,  or  directed  by  the  Governor 
to  a  particular  corporation  or  person,  as  well  as  the  copies 
emanating  from  the  department  shall  be  authorized  by  the 
secretary,  and  without  this  requisite  they  shall  not  be  obeyed 
or  be  productive  of  faith. 

142.  The  secretary  shall  be  responsible  with  his  person 
and  office  for  whatever  he  authorizes  with  his  signature  con- 
trary to  the  constitutive  act,  the  Constitution  and  general 
laws  of  the  Union,  or  the  particular  Constitution  and  laws 
of  the  State,  and  orders  of  the  President  of  the  Republic  not 
manifestly  opposed  to  said  Constitution  and  laws,  without 
availing  him  as  an  excuse,  his  having  done  so  by  order  of 
the  Governor. 

143.  For  the  internal  administration  of  his  office,  the 
rules  which  the  secretary  shall  form,  and  Congress  approve, 
shall  be  observed. 

144.  Said  public  officer,  also  the  Governor,  Vice-Governor, 
and  councilors  shall  cease,  during  their  trust,  to  discharge 
the  duties  of  an}^  public  station  they  are  filling,  as  soon  as 
they  have  taken  possession  of  their  office. 

SECTION  SIXTH DEPARTMENT  POLICE    CHIEFS    AND  DISTRICT 

CHIEFS. 

145.  In  the  capital  of  each  department  of  the  State 
there  shall  be  an  officer  charged  with  the  political  adminis- 
tration thereof,  to  be  styled  Department  Police  CJiief. 

146.  To  be  a  department  chief  it  shall  be  required  to  be  a 
citizen  in  the  exercise  of  his  rights,  to  have  attained  the  age 
of  twenty-five  years,  to  be  an  inhabitant  of  the  State,  with 
three  years'  residence  therein,  and  one  immediately  preced- 
ing his  election. 

147.  The  Governor  on  the  nomination  of  three  persons 
by  the  council,' supported  by  reports  from  the  Ayuntamien- 
tos  of  the  respective  departments,  shall  appoint  the  depart- 
ment chiefs,  except  the  one  in  the  capital. 

36 


562  BENCH  AND  BAR  OF  TEXAS. 

148.  The  chiefs  of  department  shall  be  immediately  siib- 
jett  to  the  Governor,  and  in  no  way  to  each  other. 

149.  In  the  capital  of  each  district,  exce[)t  that  in  which 
the  department  chief  resides,  there  shall  be  furthermore  a 
subordinate  or  district  chief,  appointed  by  the  executive 
from  three  persons  nominated  by  the  said  chief  of  the  de- 
partment. 

150.  The  subordinate  or  district  chief  shall  possess  the 
same  qualifications  as  the  department  chiefs,  with  the  dif- 
ference that  their  domiciliation  and  residence  must  be 
within  the  precincts  of  the  same  district,  and  they  shall 
furthermore  have  some  honorable  way  of  making  a  living, 
sufficient  to  afford  them  a  suitable  support. 

151.  The  term  of  office  of  the  district  chiefs  shall  be  the 
same  as  that  of  the  department  chiefs,  and,  on  nomination 
by  the  latter,  they  may  also  continue  in  office, 

152.  No  one  can  decline  serving  in  said  trusts,  except  in 
case  of  re-election  to  the  same  within  four  years  from  the 
time  of  serving,  or  from  some  other  legal  cause  in  the  opin- 
ion of  the  Governor,  who  shall  resolve  after  hearing  the  re- 
spective chief  of  department. 

153.  These,  as  well  as  the  department  chiefs,  shall  be 
responsible  for  all  their  acts  of  omission  against  the  Consti- 
tution and  general  laws  of  the  Republic,  and  those  of  the 
States,  the  former  to  said  chiefs  of  department,  under 
whose  immediate  orders  they  shall  act,  and  the  latter  to  the 
Governor. 

154.  The  attributes  of  both  chiefs  and  the  manner  in 
which  they  are  to  exercise  the  same  shall  be  detailed  in  the 
regulations  for  the  political  economical  administration  of 
the  towns. 

SECTION    SEVENTH  —  AYUNTAMIENTOS 

155.  It  shall  belong  to  the  Ayuntamientos  to  attend  care- 
fully to  the  police  and  internal  administration  of  the  towns 
of  the  State,  and  there  shall  be  Ayuntamientos  in  all  those 
towns  where  they  have  before  existed. 

156.  Ayuntamientos  shall  be  established  m  towns  where 
there  are  none,  wherein  it  is  proper  they  should  exist,  and 


LEGISLATIVE    DATA.  563 

they  shall  be  established  without  fail  in  the  district  capitals, 
whatever  be  the  population,  and  in  towns  which,  of  them- 
selves, or  with  the  territory  they  embrace,  contain  a  popula- 
tion to  the  amount  of  one  thousand  souls ;  unless  said  towns 
should  be  annexed  to  another  municipality,  from  which  it 
may  not  be  proper  for  them  to  separate,  in  order  that  they 
may  have  an  Ayuntamiento,  it  shall  be  so  declared  by  Con- 
gress, after  receiving  the  report  of  the  Governor,  and  the 
dispatch  that  shall  be  formed,  assigning  the  limits  that  are 
to  embrace  the  new  municipality. 

157.  Towns  that  do  not  possess  the  population  assigned, 
and  which  find  it  practicable  being  advantageously  annexed 
to  another  or  others,  shall  continue  to  be  municipalities, 
and  the  Ayuntamientos  shall  be  established  at  the  place 
most  convenient  in  the  opinion  of  the  executive. 

158.  In  towns  wherein  Ayuntamientos  can  not  be  estab- 
lished, and  which  are  so  distant  from  the  other  muicipalities 
that  the  latter  can  not  attend  to  the  internal  administration 
thereof,  the  electoral  juntas  of  that  to  which  they  belong 
shall  choose  a  commissary  of  police  and  a  sindico  pi-ocura- 
dor  to  discharge  the  duties  assigned  them  in  the  regulations 
for  the  political  administration  of  the  towns. 

159.  The  Ayuntamientos  shall  be  composed  of  the  alcalde 
or  alcaldes,  sindico  or  sindicos,  and  regidores,  whose  num- 
ber shall  be  designated  in  the  aforementioned  regulations. 

160.  To  be  a  member  of  the  A^^untamientos,  it  shall  be 
required  to  be  a  citizen  in  the  exercise  of  his  rights,  over 
twenty-five  years  of  age,  or  twenty-one  if  married,  an  in- 
habitant within  the  jurisdiction  of  the  Ayuntamiento,  witii 
three  years'  residence  therein,  one  year  immediately  preced- 
ing the  election,  to  have  some  capital  or  trade  whereb}'^  to 
subsist,  and  to  be  able  to  read  and  write. 

161.  Public  officers  receiving  a  salary  from  the  State, 
military  and  other  ofi5cers  of  the  general  government  in 
actual  discharge  of  their  duties,  and  ecclesiastics,  can  not 
members  of  the  Ayuntamiento. 

162.  The  alcades  shall  all  be  replaced  every  year,  of  the 
regidores,  one-half  their  number,  and  sindicos  procuradores 


564  BENCH  AND  BAR  OF  TEXAS. 

the  same,  should  there  be  two,  should  there  be  only  one,  he 
shall  be  replaced  any  year. 

163.  A  person  who  has  performed  the  duties  of  said 
trust,  can  not  hold  any  other  municipal  office,  or  be  re- 
elected to  that  which  he  filled  until  after  two  years  from 
having;  ceased  his  functions. 

164.  The  members  of  the  Ayuntamientos  shall  be  chosen 
by  the  municipal  electoral  meetings,  which  shall  be-  holden 
in  the  same  manner  as  the  municipal  meetings  established 
for  the  election  of  deputies  to  Congress.  The  former  juntas 
shall  be  convoked  on  the  first  Sunday  in  December ;  and 
they  shall  meet  and  perform  their  duties  on  the  second  Sun- 
day and  the  day  following. 

165.  Pursuant  to  the  action  of  said  meetings,  those 
citizens  who  have  received  the  greatest  number  of  votes  in 
the  respective  lists  shall  be  considered  constituionally 
elected  as  alcaldes,  regidores  and  sindicos.  In  case  of  a  tie 
betw^een  two  or  more  persons,  it  shall  be  decided  by  lot  by 
the  Ayuntamiento  acting  at  the  time  of  election. 

166.  Should  any  member  of  the  Ayuntamiento  decease, 
or  his  office  become  vacant  from  any  other  cause,  the  per- 
son receivinor  the  highest  number  of  votes  in  the  order  of 
tlie  resDective  list  shall  succeed  him  in  the  discharo;e  of  the 
duties. 

167.  Ayuntamiental  offices  shall  be  municipal  charges, 
which  no  one  can  decline. 

TITLE   III. 

ADMINISTRATION  OF    JUSTICE  IN  GENERAL. 

168.  The  administration  of  justice  in  civil  and  criminal 
cases  shall  belong  exclusively  to  the  tribunals  and  courts 
of  justice,  which  agreeably  to  the  constitution  should  exer- 
cise the  judicial  power. 

169.  Neither  Congress  or  the  Governor  can  remove  cases 
pending  from  an  inferior  to  a  superior  court,  nor.  can  the 
tribunals  and  courts  of  justice  themselves  open  those  already 
concluded. 


LEGISLATIVE    DATA.  565 

170.  Every  inhabitant  of  the  State  shall  be  judged  by 
competent  tribunals  and  judges,  established  prior  to  the  act 
by  which  he  is  judged,  and  in  no  way  b}'  special  commis- 
sion or  retroactive  law. 

171.  The  laws  shall  regulate  the  order  and  formalities  to 
be  observed  in  suits  at  law.  These  shall  be  uniform  in  all 
the  courts  of  justice  and  tribunals,  and  no  authority  can 
dispense  therewith. 

182.  The  tribunals  and  courts  of  justice,  being  authorized 
solely  for  applying  the  laws,  shall  never  interpret  the  same, 
or  suspend  their  execution. 

173.  Military  men  and  ecclesiastics,  residing  in  the  State, 
shall  continue  subject  to  their  respective  authorities. 

174.  No  affair  shall  have  more  than  three  processes  and 
a  like  number  of  determinate  decisions.  The  law  shall  pro- 
vide which  of  said  sentences  shall  produce  a  warrant  of 
attorney,  and  from  said  sentence  no  other  appeal  shall  be 
admitted  than  that  of  nullity,  in  the  form  and  for  the  pur- 
poses the  laAV  provides. 

175.  A  judge  who  has  rendered  a  decision  in  a  case,  in 
any  process  thereof,  can  not  take  cognizance  anew  in  any 
other  process  whatever,  or  in  appeal  of  nullity  interposed 
in  said  case. 

176.  Bribery,  subornation  and  prevarication  are  grounds 
for  public  action  against  the  magistrate  or  judge  who  should 
commit  the  same. 

177.  Justice  shall  be  administered  in  the  name  of  the 
State,  in  the  manner  the  laws  prescribe. 

PARAGRAPH  ONE ADMINISTRATION  OF  JUSTICE  IN  CIVIL  MAT- 
TERS. 

178.  Every  inhabitant  of  the  State  shall  be  perfectly 
free  to  terminate  his  controversies,  whatever  be  the  state 
of  trial,  by  means  of  arbitrators,  or  in  any  other  extra-ju- 
dicial manner.  His  agreements  in  this  particular  shall  be 
strictly  observed,  and  the  decisions  of  the  arbitrators 
executed,  shonld  the  parties  on  making  the  mutual  promise 
not  reserve  the  right  of  appeal. 

175.1.  Cases  of  a  small  amount  shall  be  terminated  by  exe- 


566  BENCH  AND  BAR  OF  TEXAS. 

entire  measures  whieh  shall  be  executed  without  any  re- 
course. A  particular  law  shall  fix  the  sum  and  mode  of 
proceeding  therein. 

180.  In  other  civil  and  criminal  matters  in  respect  to 
wrongs  there  shall  be  a  trial  by  conciliation,  and  without 
proving  that  this  means  has  been  attempted  a  trial  by  writ- 
ing can  not  be  established,  except  in  cases  wdiich  the  law 
itself  shall  determine. 

PARAGRAPH  TWO ADMINISTRATION  OF    JUSTICE  IN  CRIMINAL 

MATTERS. 

181.  All  criminal  actions,  for  light  transgressions  that 
should  be  punished  by  correctional  penalties,  shall  be 
decided  by  executive  judgment  without  the  form  or  shape 
of  trial,  and  from  the  result  no  appe;d  or  other  recourse  can 
be  interposed.  The  law  shall  assign  said  penalties,  and 
determine  the  crimes  to  which  they  correspond. 

182.  In  grave  offenses  summary  information  of  the  fact 
shall  be  drawn  up  authoritatively,  without  which  requisite 
and  that  of  the  corresponding  consequent  warrant  that  shall 
be  notified  to  the  accused,  and  a  copy  thereof  communicated 
to  the  jailor,  no  person  can  he  a  prisoner. 

183.  Should  the  judges  not  be  able  immediately  to  fulfill 
the  provision  of  the  preceding  articles,  the  person  arrested 
shall  not  be  considered  a  prisoner  but  in  the  light  of  one  de- 
tained, and  should  the  jail  warrant  not  be  made  known  to 
him  within  forty-eight  hours,  and  communicated  to  the 
jailor,  he  shall  be  discharged. 

184.  A  person  who  gives  bail  in  said  cases,  wherein  it  is 
not  expressly  prohibited  l)y  law,  shall  not  be  taken  to 
prison,  and  in  whatever  state  of  the  case  it  appears  that 
corporal  penalty  can  not  be  imposed  on  the  prisoner,  he 
shall  be  released  under  bail. 

185.  Those  who  have  to  declare  in  criminal  matters  upon 
their  own  actions  shall  do  so  without  being  under  oath. 

186.  All  persons  may  arrest  a  delinquent  in  the  act  and 
conduct  him  to  the  presence  of  the  judge. 

187.  The  greatest  care  shall  be  taken  that  the  jails  serve 
only  for  securing,  and  not  for  molesting  the  accused. 


LEGISLATIVE    DATA.  56T 

188.  Criminal  causes  shall  be  public  in  the  manner  and 
form  the  laws  provide  as  soon  as  it  is  proposed  to  receive 
the  declaration  of  the  accused  in  reply  to  the  charges. 

189.  The  confiscation  of  property  shall  forever  be  pro- 
hibited, and  even  the  seizure  thereof  can  only  be  effected  on 
proceeding  in  crimes  involving  a  pecuniary  responsibility, 
and  onl}^  in  proportion  thereto. 

190.  Torture  and  compulsion  shall  never  be  used;  and 
penalties  imposed,  whatever  be  the  crimes,  shall  never  pass 
to  the  family  of  him  who  suffers  them,  but  they  shall  have 
their  effect  solely  upon  the  person  who  deserved  them. 

191.  No  authority  of  the  State  can  issue  a  mandate  for 
searching  the  houses,  papers,  and  other  effects  of  the  inhabi- 
tants thereof,  except  in  those  cases,  and  in  the  form,  the 
laws  provide. 

192.  One  of  the  main  objects  of  attention  of  Congress 
shall  be  to  establish  the  trial  by  jury  in  criminal  cases,  to 
extend  the  same  gradually,  and  even  to  adopt  it  in  civil 
cases  in  proportion  as  the  advantages  of  this  valuable  insti- 
tution become  practically  known. 

PARAGRAPH    THREE THE    COURTS    OF    JUSTICE. 

193.  The  inferior  courts  of  justice  shall  continue  in  the 
manner  and  form  that  shall  be  prescribed  by  law,  until  in 
the  judgment  of  Congress  the  State  rents  permit  the  estab- 
lishment of  learned  judges,  who  shall  be  appointed  in  each 
district. 

194.  In  the  capital  of  the  State  there  shall  be  a  supreme 
tribunal,  divided  into  three  halls,  each  composed  of  the 
magistrate,  or  magistrates,  whom  the  law  designated,  and 
said  tribunal  shall  have  a  fiscal,  who  shall  dispatch  all  the 
subjects  of  the  three  halls.  Should  the  hall  consist  of  one 
minister  only  said  special  law  shall  determine  whether  col- 
leagues should  be  appointed,  and  the  manner  and  form  in 
which  it  shall  be  done. 

195.  The  two  first  halls  shall  take  cognizance  in  the 
second  and  third  processes  of  civil  cases  of  inferior  courts 
of  justice,  and  also  of  criminal  cases  according  as  the  laws 
determine. 


568  BENCH  AND  BAR  OF  TEXAS. 

196.  It  shall  belong  to  the  third  hall  :  First,  to  decide  the 
power  of  inferior  judges;  second,  to  determine  appeals  of 
nullity,  interposed  from  executing  judgments  in  first, 
second  and  third  processes;  third,  to  take  cognizance  in 
all  compulsive  appeals  interposed  from  the  ecclesiastical 
tribunals  and  authorities  of  the  State;  fourth,  to  examine 
the  lists  that  shall  be  transmitted  to  the  same  monthly 
of  causes  pending  in  the  first,  second  and  third  processes, 
communicate  a  copy  thereof  to  the  Governor,  and  provide 
for  their  publication  through  the  press  ;  fifth,  to  hear  doubts 
of  law  that  occur  to  the  two  first  halls  and  to  the  primary 
tribunals,  and  communicate  them  to  Congress  through  the 
channel  of  the  Governor,  accompanied  by  the  correspond- 
ing report. 

197.  Actions  for  transgressions  in  ofiice  entered  against 
inferior  judges,  and  also  those  formed  for  crimes  of  the 
same  kind,  and  those  in  general  against  the  deputies  of 
Congress,  the  Governor  and  Vice-Governor,  Councilors, 
Secretary  of  State,  and  members  of  the  tribunal  of  jus- 
tice, shall  be  opened  and  closed  in  all  their  processes  be- 
fore the  said  supreme  tribunal.  The  law  shall  mark  out 
the  other  powers  of  the  same  in  its  respective  halls. 

198.  In  case  an  action  ought  to  be  entered  against  the 
whole  tribunal,  or  any  of  its  halls.  Congress  shall  appoint 
another  special  tribunal,  composed  of  the  corres[)onding 
halls,  and  the  latter  of  the  magistrate  or  magistrates  con- 
sidered necessary. 

199.  The  special  tribunal  appointed  by  Congress  for  these 
cases  shall  take  cognizance  of  all  appeals  of  nullity  in  ac- 
tions of  the  supreme  tril)unal  of  justice,  in  those  of  the 
individuals  mentioned  in  the  preceding  article,  and  in  sub- 
jects pertaining  to  the  third  hall. 

200.  To  be  a  magistrate  or  fiscal  it  shall  be  required  to 
be  a  citizen  in  the  exercise  of  his  rights,  over  twenty-five 
years  of  age,  a  native  of  the  republic,  and  an  upright  and 
enlightened  lawyer. 

201.  Both  magistrates  and  fiscal  shall  be  appointed  by 
Congress  on  nomination  by  the  executive.  They  shall  i'e_ 
ceive  a  competent  salary,  to  be  designated    by  law,  and  can 


LEGISLATIVE    DATA.  569 

not  be  removed  from  ofBce  except  for  a  legally  established 
cause. 

202.  The  members  of  the  supreme  tribunal  of  justice 
shall  be  responsiblefor  all  their  proceedings  in  the  discharge 
of  their  functions,  and  may  be  accused  therefor  before  Con- 
gress by  any  individual  of  the  people  whatever. 

TrrLE  IV. 

SOLE    SECTION THE    STATE    REVENUE. 

203.  The  taxes  of  the  individuals  composing  the  State 
shall   form  its  public  revenue. 

204.  Said  taxes  may  be  direct,  general,  or  municipal  ; 
but  of  whatever  kind  they  are,  they  shall  be  proportionate 
to  the  expenditures  they  are  intended  to  cover,  and  to  the 
property  of  the  citizens. 

205.  Taxes  can  not  be  levied  except  for  paying  the  por- 
tion corresponding  to  the  state  of  the  general  disbursements 
of  the  republic,  and  for  covering  the  particular  expenses  of 
the  State.  The  taxes  for  the  latter  object  shall  be  fixed 
expressly,  on  the  first  term  of  session  every  year,  and  ac- 
coiding  to  pre-estimate  to  be  presented  by  the  Governor 
and  approved  by  Congress. 

206.  The  present  taxes  shall  continue  until  their  repeal 
be  published,  and  said  repeal  can  not  be  decreed  except  by 
Congress. 

207.  There  shall  be  in  the  capital  a  general  treasury  for 
the  receipt,  custody,  and  distribution  of  the  whole  product 
of  the  State  rents. 

208.  No  disbursement  that  has  not  been  for  covering  ex- 
pense approved  by  Congress,  or  special  order  of  the  Gov- 
ernor, shall  be  allowed  the  treasurer  in  account. 

209.  The  business  rooms  of  the  State  revenue  shall  be 
regulated  by  particular  instructions. 

210.  Congress  shall  choose  three  individuals  every  year 
from  within  or  without  its  own  body,  to  examine  the  ac- 
counts of  the  State  treasury,  and  afterwards  to  i)resent  or 
communicate  the  same,  accompanied    by  their   report  to 


570  BENCH  AND  BAR  OF  TEXAS, 

Congress  for  approval.  tSaid  approval,  or  the  resolution 
that  should  be  adopted  by  Congress,  shall  be  published  and 
circulated  to  the  Ayuntamientos,  in  order  that  they  in  turn 
may  publish  and  circulate  the  same  in  their  districts. 

TITLE  V. 
SOLE  SECTION CIVIC    MILITIA  OF  THE    STATE. 

211.  Corps  of  civic  militia  shall  be  established  in  all  the 
towns  of  the  State,  and  the  said  corps  shall  compose  the 
military  force  of  the  State. 

212.  The  formation  of  said  corps,  their  organization, 
discipline,  and  internal  government,  shall  be  regulated  by 
Congress  in  conformity  to  the  provision  made  on  the  sub- 
ject by  the  general  laws  of  the  Republic. 

213.  Congress  shall  regulate  the  service  of  said  militia 
so  that  while  it  is  adapted  to  the  purposes  of  its  institution 
and  to  the  best  interests  of  the  State,  it  may  be  as  little 
onerous  as  possible  to  the  citizens. 

214.  No  Coahuil-Texano  can  decline  lending  said  service 
when  required  by  law,  and  in  the  manner  it  provides. 

TITLE  VI. 

SOLE    SECTION PUBLIC    EDUCATION. 

215.  In  all  towns  of  the  State  a  suitable  number  of 
primary  schools  shall  be  established,  wherein  shall  be 
taught  reading,  writing,  arithmetic,  the  catechism  of  the 
Christian  religion,  a  brief  and  simple  explanation  of  this 
Constitution,  and  that  of  the  Republic,  the  rights  and  duties 
of  man  to  society,  and  whatever  else  may  conduce  to  the 
better  education  of  youth. 

216.  The  seminaries  most  required  for  affording  the 
public  the  means  of  instruction  in  the  sciences  and  arts 
useful  to  the  State  ;  and  wherein  the  aforementioned  con- 
stitutions shall  be  fully  explained,  shall  be  established  in 
suitable  places,  and  in  proportion  as  circumstances  go  on 
permitting. 


LEGISLATIVE    DATA.  571 

217.  The  method  of  teaching  shall  be  uniform  throughout 
the  State,  and  with  this  view,  also  to  facilitate  the  same. 
Congress  shall  form  a  general  plan  of  public  education,  and 
regulate  by  means  of  statutes  and  laws  all  that  pertains  to 
this  most  important  object. 

TITLE  VII. 

SOLE  SECTION OBSERVANCE  OF  THE  CONSTITUTION. 

218.  The  observance  of  the  Constitution  in  all  its  parts 
.shall  be  one  of  the  first  and  most  sacred  duties  of  the  in- 
habitants of  the  State  of  Coahuila  and  Texas,  and  neither 
Congress,  or  any  other  authority,  can  exempt  them  there- 
from;  and  every  Coahuil-Texano  may  demand  said  obser- 
vance, making  a  representation  with  that  view  to  Congress 
or  the  executive. 

219.  For  any  violation  of  the  Constitution  whatever,  the 
person  who  committed  it  shall  be  personally  responsible. 
In  order  to  render  said  responsibility  effective,  Congress 
shall  dictate  the  laws  and  decrees  it  thinks  conducive  to 
that  end  ;  and  furthermore,  every  j^ear  in  its  first  sessions, 
take  under  deliberation  the  infringements  manifested  to  the 
same  by  the  permanent  deputation  and  executive  council, 
and  adopt  the  proper  resolution  thereon. 

220.  The  pubhc  functionaries  of  the  State,  of  whatever 
class,  shall  make  oath,  on  entering  in  possession  of  olfice, 
to  observe,  support,  and  defend  the  constitutive  act,  the 
Constitution  of  the  Republic,  and  that  of  the  State,  and 
faithfully  discharge  the  duties  of  their  office. 

221.  Propositions  upon  amendment,  alteration,  or  repeal 
of  any  one  or  more  of  its  articles,  shall  be  made  in  writing, 
and  supported  and  signed  b3^a  third  part  of  the  deputies. 

222.  The  Congress,  in  whose  time  any  of  the  said  propo- 
sitions are  made,  shall  make  no  further  provision  during  the 
two  years  of  its  sessions,  than  for  the  reading  and  printing 
of  the  same,  wilh  the  original  reasons  with  which  they  are 
supported. 

223.  The  Congress  following  shall  receive  the  proposi- 
tions for  said  discussion,  and  accept  or  reject  them  ;  and  if 


572  BENCH  AND  BAR  OF  TEXAS. 

accepted,  they  shall  again  be  printed  and  circulated  by  the 
executive  to  be  read  in  the  immediate  electoral  juntas  pre- 
vious to  electing  deputies  to  Congress. 

224.  The  alterations,  amendments  or  repeals  proposed 
shall  be  discussed  in  the  Congress  that  follows,  and  should 
the}''  be  approved,  they  shall  be  immediately  published  as 
constitutional  articles. 

225.  For  the  amendments,  alterations  and  repeals  in- 
dicated, besides  the  rules  prescribed  in  the  foregoing  arti- 
cles, all  those  provided  for  forming  and  repealing  laws, 
shall  be  observed,  with  the  exception  of  the  right  of  mak- 
ing observations  granted  the  Governor,  which  shall  not  in 
these  cases  be  conceded. 

Santiago  del  Valle,  President. 
Juan  Antonio  Padilla,  Secretary. 


TEXAN    INDEPENDENCE.  573 


TEXAS  Independence. 


TPIE    CONSULTATION. 

On  the  15th  of  August,  1835,  the  citizens  of  Columbia, 
Texas,  held  a  meeting,  in  Avhich  it  was  declared  that  a  con- 
sultation of  all  Texas  through  her  representatives  was 
indispensable;  and  agreeably  to  this  resolution  the  citizens 
of  the  several  municipalities  of  the  province  elected  dele- 
gates to  meet  in  general  consultation,  at  San  Felipe  de 
Austin  on  the  13th  of  October.  A  number  of  the  dele- 
gates convened  on  the  day  specified,  but  a  governor  not 
having  arrived,  the  meeting  was  adjourned  to  the  1st  day 
of  November,  when  after  completing  its  organization  in 
consultation  on  the  7th  of  November  unanimously  adopted 
the  following ;  — 

*'  Declaration  of  the  people  of  Texas  in  general  convention 
assembled 

"  Whereas,  General  Antonio  Lopez  de  Santa  Anna  and 
other  military  chieftains  have  by  force  of  arms  over- 
thrown the  federal  institutions  of  Mexico,  and  dissolved 
the  social  compact  which  existed  between  Texas  and  the 
other  members  of  the  Mexican  confederacy ;  now  the 
good  people  of  Texas,  availing  themselves  of  their  natural 
rights,  solemnly  declare:  — 

"  1st.  That  they  have  taken  up  arms  in  defense  of  their 
rights  and  liberties,  which  were  threatened  by  the  encroach- 
ments of  military  despots,  and  in  defense  of  their  repub- 
lican principles  of  the  federal  constitution  of  Mexico,  of 
eighteen  and  twenty-four. 

"  2d.  That  Texas  is  no  longer  morally  or  civill}-  bound  by 
the  compact  of  union  ;  yet,  stimulated    by  the  generosity 


574  BENCH  AND  BAR  OF  TEXAS. 

and  sympcathy  common  to  a  free  people,  they  offer  their 
support  and  assistance  to  such  of  the  members  of  the  Mex- 
ican confederacy  as  will  take  up  arms  against  military 
despotism. 

"  3d.  That,  they  do  not  acknowledge  that  the  present 
authorities  of  the  nominal  Mexican  republic  have  the  right 
to  govern  within  the  limits  of  Texas. 

"4th.  That  they  will  not  cease  to  carry  on  war  against 
the  said  authorities  whilst  their  troops  are  within  the  limits 
of  Texas. 

"  5th.  That  they  hold  it  to  be  their  right  during  the  dis- 
organization of  the  federal  system,  and  the  reign  of  despot- 
ism, to  withdraw  from  the  union  to  establish  an  independent 
government,  or  to  adopt  such  measures  as  they  may  deem 
best  calculated  to  protect  their  rights  and  liberties  ;  but 
that  they  will  continue  faithful  to  the  Mexican  government 
so  long  as  that  nation  is  governed  by  the  constitution  and 
laws  that  were  formed  for  the  government  of  the  political 
association. 

"  Gth.  That  Texas  is  responsible  for  the  expenses  of  her 
armies  now  in  the  field, 

"  7th.  That  the  public  faith  of  Texas  is  pledged  for  the 
payment  of  any  debts  contracted  by  her  agents. 

"  8th.  That  she  will  reward  by  donations  in  lands  all  who 
volunteer  their  services  in  her  present  struggle,  and  receive 
them  as  citizens. 

These  declarations  we  solemnly  avow  to  the  world,  and 
call  on  God  to  witness  their  truth  and  sincerity,  and  invoke 
defeat  and  disgrace  upon  our  heads,  should  we  prove  guilty 
of  duplicity." 

The  consultation  having  thus  established  a  provisional 
government  adjourned  on  November  14th,  to  meet  again  on 
the  1st  day  of  March,  1836,  unless  convoked  sooner  b}^  the 
Governor  and  council.  It  reconvened  on  the  1st  day  of 
March  at  the  town  of  Washington,  on  the  Brazos,  and 
proceeded  immediately  to  appoint  a  committee  to  draft  a 
declaration  of  independence  which  made  its  report  on  the 
next  day. 


THE  TEXAS  DECLARATION  OF  INDEPENDENCE.    575 


THE  TEXAS  Declaration   of  inde- 
pendence. 


Made  at  the  town  of  Washington,  on  the  2d  of  March,  isse 


When  a  government  has  ceased  to  protect  the  lives, 
liberty  and  property  of  the  people,  from  whom  its  legiti- 
mate powers  are  derived,  and  for  the  advancement  of  whose 
happiness  it  was  instituted ;  and  so  far  from  being  a  guar- 
antee for  their  inestimable  and  inalienable  rights,  becomes 
an  instrument  in  the  hands  of  evil  rulers  for  their  oppres- 
sion ;  when  the  federal  republican  Constitution  of  their 
country,  which  they  have  sworn  to  support,  no  longer  has  a 
substantial  existence,' and  the  whole  nature  of  their  govern- 
ment has  been  forcibly  changed,  without  their  consent,  from 
a  restricted  Federative  Republic,  composed  of  sovereign 
States,  to  a  consolidated  central  military  despotism,  in 
which  every  interest  is  disregarded  but  that  of  the  army  and 
the  priesthood,  both  the  eternal  enemies  of  civil  liberty, 
the  ever  ready  minions  of  power,  and  the  usual  instruments 
of  tyrants;  when,  long  after  the  spirit  of  the  Constitution 
has  departed,  moderation  is  at  length  so  far  lost  by  those  in 
power,  that  even  the  semblance  of  freedom  is  removed,  and 
the  forms  themselves  of  the  Constitution  discontinued  ;  and 
so  far  from  their  petitions  and  remonstrances  being  regarded, 
the  agents  who  bear  them  are  thrown  into  dunijeons,  and 
mercenary  armies  sent  forth  to  enforce  a  new  government 
upon  them  at  the  point  of  the  bayonet. 

When  in  consequence  of  such  acts  of  malfeasance  and 
abduction  on  the  part  of  the  government,  anarchy  prevails, 
and  civil  society  is  dissolved  into  its  original  elements  —  in 
such  a  crisis  the  first  law  of  nature,  the  right  of  self-preser- 
vation, the  inherent  and  inalienable  right  of  the  people   to 


576  BENCH    AND    BAR    OF    TEXAS. 

appeal  to  first  principles,  and  take  their  political  affairs 
into  their  own  hands  in  extreme  cases,  enjoins  it  as  a  right 
towards  themselves,  and  a  sacred  obligation  to  their  pos- 
terity, to  abolish  such  government,  and  create  another  in 
its  stead,  calculated  to  rescue  them  from  impending  dangers, 
and  secure  their  welfare  and  happiness. 

Nations,  as  well  as  individuals,  are  amenable  for  their 
acts  to  the  general  opinion  of  mankind.  A  statement  of  a 
part  of  our  grievances  is  therefore  submitted  to  an  im- 
partial world,  in  justification  of  the  hazardous,  but  unavoid- 
able step  now  taken,  of  severing  our  political  connection 
with  the  Mexican  people,  and  assuming  an  independent  alti- 
tude among  the  nations  of  the  earth. 

The  Mexican  government  by  its  colonization  laws  invited 
and  induced  the  Anglo-American  population  of  Texas  to 
colonize  its  wilderness  under  the  pledged  faith  of  a  written 
Constitution,  that  they  should  continue  to  enjoy  that  con- 
stitutional liberty  and  Republican  government  to  which  they 
bad  been  habituated  in  the  land  of  their  birth,  the  United 
States  of  America. 

In  this  expectation  they  have  been  cruelly  disappointed, 
inasmuch  as  the  Mexican  nation  has  acquiesced  in  the  late 
changes  made  in  the  government  of  General  Antonio  Lopez 
de  Santa  Anna  who,  having  overturned  the  Constitution  of 
his  country,  now  offers  to  us  the  cruel  alternatives,  either  to 
abandon  our  homes,  acquired  by  so  many  privations,  or  sub- 
mit to  the  most  intolerable  of  all  tyranny,  the  combined 
despotism  of  the  sword  and  the  priesthood. 

It  hath  sacrificed  our  welfare  to  the  State  of  Coahuila, 
by  which  our  interests  have  been  continually  depressed 
through  a  jealous  and  partial  course  of  legislation,  carried 
on  at  a  far  distant  seat  of  government,  by  a  hostile  ma- 
jority, in  an  unknown  tongue;  and  this,  too,  notwithstand- 
ing we  have  petitioned  in  the  humblest  terms  for  the 
establishment  of  a  separate  State  government,  and  have  in 
accordance  with  the  provisions  of  the  National  Constitution, 
presented  to  the  General  Congress  a  republican  Constitu- 
tion, which  was  without  just  cause  contemptuously  re- 
jected. 


THE  TEXAS  DECLARATION  OF  INDEPENDENCE.    577 

It  incarcerated  in  a  dungeon,  for  a  long  time,  one  of  our 
citizens,  for  no  other  cause,  but  a  zealous  endeavor  to  pro- 
cure the  acceptance  of  our  Constitution  and  the  establish- 
ment of  a  State  government. 

It  has  failed  and  refused  to  secure  on  a  firm  basis  the 
right  of  trial  by  jury,  that  palladium  of  civil  liberty,  and 
only  safe  guarantee  for  the  life,  liberty,  and  property  of 
the  citizen. 

It  has  failed  to  establish  any  public  system  of  education, 
iilthough  possessed  of  almost  boundless  resources  (the  pub- 
lic domain),  and  although  it  is  an  axiom  in  political  science, 
that  unless  a  people  are  educated  and  enlightened,  it  is  idle 
to  expect  the  continuance  of  civil  liberty,  or  the  capacity 
for  self-government. 

It  has  suffered  the  military  commandants,  stationed 
among  us,  to  exercise  arbitrary  acts  of  oppression  and 
tyranny,  thus  trampling  upon  the  most  sacred  rights  of  the 
citizen,  and  rendering  the  military  superior  to  the  civil 
power. 

It  has  dissolved,  by  force  of  arms,  the  State  Congress  of 
Coahuila  and  Texas,  and  obliged  our  representatives  to  fly 
for  their  lives  from  the  seat  of  government,  thus  depriving 
us  of  the  fundamental  political  right  of  representation. 

It  has  demanded  the  surrender  of  a  number  of  our  citi- 
zens, and  ordered  military  detachments  to  seize  and  carry 
them  into  the  interior  for  trial,  in  contempt  of  the  civil 
authorities,  and  in  defiance  of  the  laws  and  the  Constitution. 

It  has  made  piratical  attacks  upon  our  commerce  by  com- 
missioning foreign  desperadoes,  and  authorizing  them  to 
seize  our  vessels,  and  convey  the  property  of  our  citizens 
to  far  distant  ports  for  confiscation. 

It  denies  us  the  right  of  worshiping  the  Almighty  accord- 
ing to  the  dictates  of  our  own  conscience,  by  the  support 
of  a  national  religion,  calculated  to  promote  the  temporal 
interest  of  its  human  functionaries,  rather  than  the  glory  of 
the  true  and  living  God. 

It  has  demanded  us  to  deliver  up  our  arms,  which  are 
essential  to  our  defense  —  the  rightful  property  of  free- 
men—  and  formidable  only  to  tyrannical  governments. 

37 


578  BENCH  AND  BAR  OF  TEXAS. 

It  has  invaded  our  country  both  by  sea  and  land  with  in- 
tent to  lay  waste  our  territory,  and  drive  us  from  our  homes  ; 
and  has  now  a  large  mercenary  army  advancing  to  carry  on 
against  us  a  war  of  extermination. 

It  has,  through  its  emissaries,  incited  the  merciless  savage, 
with  tomahawk  and  scalping  knife,  to  massacre  the  inhab- 
itants of  our  defenseless  frontiers. 

It  has  been,  during  the  whole  time  of  our  connection  with 
it,  the  contemptible  sport  of  successive  military  revolutions^ 
and  hath  continually  exhibited  every  characteristic  of  a 
weak,  corrupt  and  tyrannical  government. 

These  and  other  grievances  were  patiently  borne  by  the 
people  of  Texas  until  they  reached  that  point  at  which  for- 
bearance ceases  to  be  a  virtue.  We  then  took  up  arms  in 
defense  of  the  National  Constitution.  We  appealed  to  our 
Mexican  brethren  for  assistance  ;  our  appeal  has  been  made 
in  vain  ;  though  months  have  elapsed,  no  sympathetic  re- 
sponse has  yet  been  heard  from  the  interior.  We  are,  there- 
fore, forced  to  the  melancholy  conclusion  that  the  Mexican 
people  have  acquiesced  in  the  destruction  of  their  liberty, 
and  the  substitution  therefor  of  a  military  government. 

The  necessity  of  self-preservation,  therefore,  now  decrees 
our  eternal  political  separation. 

We,  therefore,  the  delegates,  with  plenary  powers,  of  the 
people  of  Texas,  in  solemn  convention  assembled,  appealing 
to  a  candid  ivorld,  for  the  necessities  of  our  condition,  do 
hereby  resolve  and  declai'e  that  our  'political  connection  with 
the  Mexican  nation  has  forever  ended,  and  that  the  people 
of  Texas  do  now  constitute  a  Free,  Sovereign  and  Inde- 
pendent Republic,  and  are  fully  invested  with  all  the  rights 
and  attributes  which  properly  belong  to  independent  nations; 
and,  conscious  of  the  rectitude  of  our  intentions,  we  fear- 
lessly and  confidently  commit  the  issue  to  the  Supreme 
Arbiter  of  the  destinies  of  nations. 


THE  TEXAS  DECLARATION  OF  INDEPENDENCE. 


579 


SIGNERS    OP   THE   DECLARATION. 

With  a  statement  furnished  by  themselves   during  the 
Convention. 


Name.  Age. 

Eichard  Ellis 54 

C.  B.  Stewart   -. .  30 

James  Collinsworth 30 

Edwin  Waller 35 

Asa  Brigham 46 

J.  S.  D.Byom 38 

Frances  Ruis 54 

J.  Antonio  Navarro 41 

J.  B.  Badyett 29 

W.  D.  Lacy 28 

William  Menifee 40 

John  Fisher 36 

M.  Coldwell 38 

W.  Motley 24 

L.  D.  Zavala 47 

George  W.  Smyth 33 

S.  HrEverett 29 

E.  Stapp 53 

Claiborne  West 36 

W.  B.  Scates 30 

M.  B.  Menard 31 

A.  B.  Hardin 38 

J.  W.  Bunton 28 

Thomas  G.  Gazeley  —  .  35 

R.  M.  Coleman 37 

B.  Hardiman 41 

R.  Potter 36 

Thomas  J.  Rusk 29 

Charles  S.  Taylor .-  28 

John  S.  Roberts 40 

R.  Hamilton 53 

C.  McKinney 70 


Nativity.  Former  Besidence. 

Virginia Alabama 

South  Carolina. Louisiana 

Tennessee Tennessee 

Virginia Missouri 

Massachusetts.  .Louisiana 

Georgia Florida 

Texas 

Texas 

North  Carolina.  Arkansas  Ty 

Kentucky Tennessee 

Tennessee. . . .  .Alabama 

Virginia Virginia 

Kentucky Missouri 

Virginia Kentucky 

Yucatan Mexico 

North  Carolina.  Alabama 

New  York New  York 

Virginia Missouri 

Tennessee Louisiana 

Virginia Kentucky 

Canada Illinois 

Georgia Tennessee 

Tennessee. ....  Tennessee 

New  York Louisiana 

Kentucky Kentucky 

Tennessee Tennessee 

North  Carolina. N.  Carolina 
South  Carolina.  Georgia 

England New  York 

Virginia Louisiana 

Scotland N.  Carolina 

New  Jersey. . . .  Kentucky 


580 


BENCH   AND    BAR   OF   TEXAS. 


SIGNERS  OF  THE  DECLARATION  —  Continued. 


Name.  Age. 

A.  H.  Lattimer 27 

James  Power 48 

Sam  Houston 43 

David  Thomas 35 

E.   Com-ad 26 

Martin  Palmer 58 

E.  O.  Legrand 33 

S.W.  Blunt 28 

James  Gaines. .. , 60 

W.  Clark,  Jr 37 

S.Pennington 27 

W.  C.  Crawford 31 

John  Turner 34 

B.  B.  Goodrich 37 

G.  W.  Barnett 43 

J.  G.  Swisher 41 

Jessie  Grimes 48 

Thomas  Barnett — 


Nativity.  Fomier  Besidence. 

Tennessee Tennessee 

Ireland Louisiana 

Virginia Tennessee 

Tennessee Tennessee 

Pennsylvania  ..Pennsyl'nia 

Virginia Missouri 

North  Carolina.  Alabama 

Georgia Georgia 

Virginia Louisiana 

North  Carolina.  Georgia 

Kentucky Arkansas  Ty 

North  Carolina.  Alabama 
Norfti  Carolina. Tennessee 

Virginia Alabama. 

South  Carolina.  Mississippi 

Tennessee Tennessee 

North  Carolina.  Alabama 
South  Carolina.  Mississippi. 


The  following  members  were  not  present  at  the  signing : 
S.  C.  Kobertson,  George  C.  Childers,  S.  Khodes,  Fisher, 
Samuel  A.  Maverick,  John  W.  Bower,  James  D.  Woods, 
Andrew  Briscoe,  John  W.  Moore  ;  and  the  following  failed 
to  reach  the  Convention  in  time:  James  Kerr,  John  J.  Linn, 
and  Juan  Antonio  Podilla. 


CONSTITUTION    Or   THE    TEXAN   REPUBLIC.  581 


CONSTITUTION  OF  THE  TEXAN   REPUBLIC. 


Adopted  on  the  i7th  of  March,  1836 


We,  the  people  of  Texas,  in  order  to  form  a  government, 
establish  justice,  insure  domestic  tranquility,  provide  for  the 
common  defense  and  general  welfare,  and  to  secure  the 
blessings  of  liberty  to  ourselves  and  our  posterity,  do  or- 
dain and  establish  this  Constitution 

ARTICLE    I. 

Section  1.  The  powers  of  this  government  shall  be 
divided  into  three  departments,  viz.  :  Legislative,  Exe- 
cutive and  Judicial,  which  shall  remain  forever,  separate  and 
distinct. 

Sec.  2.  The  Legislative  power  shall  be  vested  in  a  Senate 
and  House  of  Representatives,  to  be  styled,  the  Congress 
of  the  Republic  of  Texas. 

Sec.  3.  The  members  of  the  House  of  Representatives 
shall  be  chosen  annually,  on  the  first  Monday  of  September 
each  year,  until  Congress  shall  otherwise  provide  by  law, 
and  shall  hold  their  offices  one  year  from  the  date  of  their 
election. 

Sec.  4.  No  person  shall  be  eligil)le  to  a  seat  in  the  House 
of  Representatives  until  he  shall  have  attained  the  age  of 
twenty-five  years,  shall  be  a  citizen  of  the  Republic,  and 
shall  have  resided  in  the  county  or  district  six  months  next 
preceding  his  election. 

Sec.  5.  The  House  of  Representatives  shall  not  consist 
of  less  than  twenty-four,  nor  more  than  forty  members, 
until  the  population  shall  amount  to  one  hundred  thousand 
souls,  after  which  time  the  whole  number  of  representatives 
shall   not  be  less  than  forty  nor  more  than  one  hundred  . 


582  BENCH  AND  BAR  OF  TEXAS. 

provided,  however,  that  each  county  shall  be  entitled  to  at 
least  one  representative. 

Sec.  6.  The  House  of  Representatives  shall  choose  their 
own  speaker  and  other  officers,  and  shall  have  the  sole 
power  of  impeachment. 

Sec.  7.  The  Senators  shall  be  chosen  by  districts  as 
nearly  equal  in  free  population  (free  negroes  and  Indians 
excepted)  as  practicable,  and  the  number  of  Senators  shall 
never  be  less  than  one-third  nor  more  than  one-half  the 
number  of  Representatives,  and  each  district  shall  be  en- 
titled.to  one  member  and  no  more. 

Sec.  8.  The  Senators  shall  be  chosen  for  the  term  of 
three  years,  on  the  first  Monday  in  September  —  shall  be 
citizens  of  the  Republic,  reside  in  the  district  for  which  they 
are  respectively  chosen  at  least  one  year  before  the  election, 
and  shall  have  attained  the  age  of  thirty  years. 

Sec.  9.  At  the  first  session  of  Congress  after  the  adop- 
tion of  this  Constitution,  the  Senators  shall  be  divided  by 
lot  into  three  classes,  as  nearly  equal  as  practicable,  the 
seats  of  the  Senators  of  the  first  class  shall  be  vacated  at 
the  end  of  the  first  year,  of  the  second  class  at  the  end  of 
the  second  year,  the  third  class  at  the  end  of  the  third  year, 
in  such  a  manner  that  one-third  shall  be  chosen  each  year 
thereafter. 

Sec.  10.  The  Vice-President  of  the  Republic  shall  be 
President  of  the  Senate,  but  shall  not  vote  on  any  question 
unless  the  Senate  be  equally  divided. 

Sec.  11.  The  Senate  shall  choose  all  other  officers  of 
their  body,  and  a  President,  pro  tempore,  in  the  absence  of 
the  Vice-President,  or  whenever  he  shall  exercise  the  office 
of  President ;  shall  have  the  sole  power  to  try  impeachments, 
and  when  sitting  as  a  court  of  impeachment,  shall  be  under 
oath;  but  no  conviction  shall  take  place  without  the  con- 
currence of  two-thirds  of  all  the"  members  present. 

Sec.  12.  Judgment  in  cases  of  impeachment  shall  only 
extend  to  removal  from  office,  and  disqualification  to  hold 
any  office  of  li/)nor,  trust  or  profit  under  this  government; 
but  the  party  shall  nevertheless  be  liable  to  indictmeutj 
trial,  judgment  and  punishment,  according  to  law. 


CONSTITUTION  OF  THE  TEXAN  REPUBLIC.       583 

Sec.  13.  Each  House  shall  be  the  judge  of  the  elections, 
qualifications  and  returns  of  its  own  members.  Two-thirds 
of  each  house  shall  constitute  a  quorum  to  do  business,  but 
a  smaller  number  may  adjourn  from  day  to  day,  and  may 
compel  the  attendance  of  absent  members. 

Sec.  14.  Each  House  may  determine  the  rules  of  its  own 
proceedings,  punish  the  members  for  disorderly  behavior, 
and  with  the  concurrence  of  two-thirds,  may  expel  a  mem- 
ber, but  not  a  second  time  for  the  same  offense. 

Sec.  15.  Senators  and  Representatives  shall  receive  a 
compensation  for  their  services,  to  be  fixed  by  law;  but 
no  increase  of  compensation  or  diminution  shall  take  effect 
during  the  session  at  which  such  increase  or  diminution 
shall  have  been  made.  They  shall,  except  in  case  of  trea- 
son, felony,  or  breach  of  the  peace,  be  privileged  from 
arrest  during  the  session  of  Congress,  and  in  going  to  and 
returning  from  the  same  ;  and  for  any  speech  or  debate 
in  either  House  they  shall  not  be  questioned  in  any  other 
place. 

Sec.  16.  Euch  House  may  punish,  by  imprisonment  dur- 
ing the  session,  any  person  not  a  member  who  shall  be  guilty 
of  any  disrespect  to  the  House  by  any  disorderly  conduct  in 
their  presence. 

Sec.  17.  Each  House  shall  keep  a  journal  of  its  proceed- 
ings, and  publish  the  same,  except  such  parts  as,  in  its 
judgment,  require  secrecy.  When  any  three  members  shall 
desire  the  yeas  and  nays  on  any  question  they  shall  be  en- 
tered on  the  journals. 

Sec.  18.  Neither  House,  without  the  consent  of  the 
other,  shall  adjourn  for  more  than  three  days,  nor  to  any 
other  place  than  that  in  which  the  two  houses  may  be  sitting. 

Sec.  19.  AVhen  vacancies  happen  in  either  House  the 
executive  shall  issue  writs  of  election  to  fill  such  vacancies. 

Sec.  20.  No  bill  shall  become  a  law  until  it  shall  have  been 
read  on  three  several  days  in  each  House,  and  passed  by  the 
same ;  unless,  in  cases  of  emergency,  two-thirds  of  the 
members  of  the  House  where  the  bill  originated  shall  deem 
it  expedient  to  dispense  with  the  rule. 

Sec.  21.  After  a  bill  shall  have  been  rejected  no  bill  con- 


584  BENCH  AND  BAR  OF  TEXAS. 

taining  the  same  substance  shall  be  passed  into  law  during 
the  same  session. 

Sec.  22.  The  style  of  the  laws  of  the  Eepublic  shall  be: 
«'  Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  Republic  of  Texas  in  Congress  assembled." 

Sec.  23.  No  person  holding  an  office  of  profit  under  the 
government  shall  be  eligible  to  a  seat  in  either  House  of  Con- 
gress, nor  shall  any  member  of  either  House  be  eligible  to 
any  office  which  may  be  created  or  the  profits  of  which  shall 
be  increased  during  his  time  of  service. 

Sec.  24.  No  holder  of  public  moneys,  or  collector  thereof, 
shall  be  eligible  to  a  seat  in  either  House  of  Congress  until 
he  shall  have  fully  acquitted  himself  of  all  responsibility, 
and  shall  produce  the  proper  officer's  receipt  thereof. 
Members  of  either  House  may  protest  against  any  act  or 
resolution,  and  may  have  such  protest  entered  on  the  jour- 
nals of  their  respective  Houses. 

Sec.  25.  No  money  shall  be  drawn  from  the  public 
treasury  but  in  strict  accordance  with  appropriations  made 
by  law ;  and  no  appropriations  shall  be  made  for  private  or 
local  purposes,  unless  two-thirds  of  each  House  concur  in 
such  appropriations. 

Sec.  26.  Every  act  of  Congress  shall  be  approved  and 
signed  by  the  President  before  it  becomes  a  law ;  but  if  the 
President  shall  not  approve  and  sign  such  act  he  shall  return 
it  to  the  House  in  which  it  originated,  with  his  reasons  for 
not  approving  the  same,  which  shall  be  spread  upon  the 
journals  of  each  House,  and  the  bill  shall  then  be  recon- 
sidered, and  shall  not  become  a  law  unless  it  shall  then  pass 
by  a  vote  of  two-thirds  of  both  houses.  If  any  act  shall  be 
disapproved  by  the  President  the  vote  on  the  reconsidera- 
tion shall  be  recorded  by  ayes  and  noes.  If  the  President 
shall  fail  to  return  a  bill  within  five  days  (Sundays  excepted) 
after  it  shall  have  been  presented  for  his  approval  and  signa- 
ture the  same  shall  become  a  law,  unless  the  Congress  pre- 
vents its  return  within  the  time  above  specified  by  adjourn- 
ment. 

Sec.  27.  All  bills,  acts,  orders,  or  resolutions  to  which 
the  concurrence  of  both  Houses  maybe  necessary  (motions 


CONSTITUTION  OF  THE  TEXAN  REPUBLIC.       585 

or  resolutions  fo-r  adjournment  excepted),  shall  be  approved 
and  signed  by  the  President,  or,  being  disapproved,  shall  be 
passed  by  two-thirds  of  both  Houses,  in  manner  and  form  as 
specified  in  section  twenty. 

ARTICLE    II. 

Section  1.  Congress  shall  have  power  to  levy  and  collect 
taxes  and  imports,  excise  and  tonnage  duties,  to  borrow 
money  on  the  faith,  credit  and  property  of  the  government, 
to  pay  the  debts,  and  to  provide  for  the  common  defense 
and  general  welfare  of  the  Republic. 

Sec.  2.  To  regulate  commerce,  to  coin  money,  to  regu- 
late the  value  thereof  and  of  foreign  coin,  to  fix  the  stand- 
ard of  weights  and  measures,  but  nothing  but  gold  and 
silver  shall  be  made  a  lawful  tender. 

Sec.  3.  To  establish  post-offices  and  post-roads,  to  grant 
charters  of  corporations,  patents  and  copyrights,  and  secure 
to  the  authors  and  inventors  the  exclusive  use  thereof  for 
a  limited  time. 

Sec.  4.  To  declare  war,  grant  letters  of  marque  and  re- 
prisal, and  to  regulate  captures. 

Sec.  5.  To  provide  and  maintain  an  army  and  navy,  and 
to  make  all  laws  and  regulations  necessary  for  their  govern- 
ment. 

Sec.  6.  To  call  out  the  militia  to  execute  the  law,  to  sup- 
press insurrections  and  repel  invasion. 

Sec.  7.  To  make  all  laws  which  shall  be  deemed  necessar}'' 
and  proper  to  carry  into  effect  the  foregoing  express  grants 
of  power,  and  all  other  powers  vested  in  the  government  of 
the  Republic,  or  in  any  offices  or  department  thereof. 

article  III. 

Section  1.  The  executive  authority  of  this  government 
shall  be  vested  in  a  chief  magistrate,  who  shall  be  styled 
the  President  of  the  Republic  of  Texas. 

Sec.  2.  The  first  President  elected  by  the  people  shall 
hold  his  office  for  the  term  of  two  years,  and  shall  be  in- 
eligible during  the  next  succeeding  term,  and  all  subsequent 
Presidents  shall  be  elected  for  three  years,  and  be  alike  in- 


586  BENCH  AND  BAR  OF  TEXAS. 

eligible  ;  and  in  the  event  of  a  tie  the  House  of  Representa- 
tives shall  determine  between  the  two  highest  candidates  by 
viva  voce  vote. 

Sec.  3.  The  returns  of  the  elections  for  President  and 
Vice-President  shall  be  sealed  up  and  transmitted  to  the 
Speaker  of  the  House  of  Representatives  by  the  liolders  of 
elections  of  each  county ;  and  the  Speaker  of  the  House 
of  Representatives  shall  open  and  publish  the  returns  in 
presence  of  a  majority  of  each  House  of  Congress. 

ARTICLE  IV. 

Section  1.  The  judicial  powers  of  the  government  shall 
be  vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may,  from  time  to  time,  ordain  and  estab- 
lish. The  judges  of  the  Supreme  and  inferior  courts  shall 
hold  their  offices  for  four  years,  be  ineligible  to  re-election, 
and  shall,  at  stated  periods,  receive  for  their  services  a  com- 
pensation not  to  be  increased  or  diminished  during  the 
period  for  which  they  were  elected. 

Sec.  2.  The  Republic  of  Texas  shall  be  divided  into  con- 
venient judicial  districts,  not  less  than  three  nor  more  than 
eight.  There  shall  be  appointed  for  each  district  a  judge, 
who  shall  reside  in  the  same,  and  hold  the  courts  at  such 
times  and  places  as  Congress  may  by  law  direct. 

Sec.  3.  In  all  admiralty  and  maritime  cases,  in  all  cases 
affecting  embassitdors,  public  ministers  or  consuls,  and  in 
all  capital  cases,  the  District  Courts  shall  have  exclusive 
original  jurisdiction,  and  original  jurisdiction  in  all  civil 
cases  when  the  matter  in  controversy  amounts  to  one  hun- 
dred dollars. 

Sec.  4.  The  judges,  by  virtue  of  their  offices,  shall  be 
conservators  of  the  peace  throughout  the  Republic.  The 
style  of  all  process  shall  be,  "  The  Republic  of  Texas," 
and  all  prosecutions  shall  be  carried  on  in  the  name  and  by 
the  authority  of  the  same,  and  conclude  "  against  the  peace 
and  dignity  of  the  Republic." 

Sec.  5.  There  shall  be  a  district  attorney  appointed  for 
each  district,  whose  duties,  salaries,  perquisites  and  term 
of  service  shall  be  fixed  by  law. 


CONSTITUTION    OF    THE    TEXAN    EEPUBLIC.  587 

Sec.  6.  The  clerks  of  the  District  Courts  shall  be  elected 
by  the  qualified  voters  for  members  of  Congress  in  the 
counties  where  the  courts  are  established,  and  shall  hold 
their  offices  for  four  years,  subject  to  removal  by  present- 
ment of  a  grand  jury,  and  conviction  of  a  petit  jury. 

Sec.  7.  The  Supreme  Court  shall  consist  of  a  chief  jus- 
tice and  associate  judges;  the  district  judges  shall  compose 
the  associate  judges,  a  majority  of  whom,  with  the  chief 
justice,  shall  constitute  a  quorum. 

Sec.  8.  The  Supreme  Court  shall  have  appellate  jurisdic- 
tion only,  which  shall  be  conclusive,  within  the  limits  of  the 
Republic  ;  and  shall  hold  its  sessions  annually,  at  such  times 
and  places  as  may  be  fixed  by  law  ;  provided,  that  no  judges 
shall  sit  in  a  case  in  the  Supreme  Court  tried  by  him  in  the 
court  below. 

Sec.  9.  The  judges  of  the  Supreme  and  District  Courts 
shall  be  elected  by  joint  ballot  of  both  houses  of  Congress. 

Sec.  10.  There  shall  be  in  each  county  a  County  Court, 
and  such  justices'  courts  as  the  Congress  may  from  time  to 
time  establish. 

Sec.  11.  The  Republic  shall  be  divided  into  convenient 
counties,  but  no  new  county  shall  be  established  unless  it 
be  done  on  the  petition  of  one  hundred  free  male  inhabit- 
ants of  the  territory  sought  to  be  laid  off  and  established; 
and  unless  the  said  territory  shall  contain  nine  hundred 
square  miles. 

Sec.  12.  There  shall  be  appointed  for  each  county  a  con- 
venient number  of  justices  of  the  peace,  one  sheriff',  one 
coroner,  and  a  sufficient  number  of  constables,  who  shall 
hold  their  offices  for  two  years;  to  be  elected  by  the  quali- 
fied voters  of  the  district  or  county,  as  Congress  may 
direct.  Justices  of  the  peace  and  sheriffs  shall  be  commis- 
sioned by  the  President. 

Sec.  13.  The  Congress  shall,  as  early  as  practicable,  in- 
troduce, by  statute,  the  common  law  of  England,  with  such 
modifications  as  our  circumstances,  in  their  judgment,  may 
require  ;  and  in  all  criminal  cases,  the  common  law  shall  be 
the  rule  of  decision. 


588  BENCH  AND  BAR  OP  TEXAS. 


ARTICLE  V. 


Section  1.  Ministers  of  the  Gospel  being,  by  their  pro- 
fession, dedicated  to  God  and  the  care  of  souls,  ought  not 
to  be  divested  from  the  great  duties  of  their  functions  ; 
therefore,  no  minister  of  the  gospel,  or  priest  of  any  de- 
nomination whatever,  shall  be  eligible  to  the  office  of  the 
executive  of  the  Republic,  nor  to  a  seat  in  either  branch 
of  the  Congress  of  the  same. 

Sec.  2.  Each  member  of  the  Senate  and  House  of  Rep- 
resentatives shall,  before  they  proceed  to  business,  take  an 
oath  to  support  the  Constitution,  as  follows  :  — 

**  I,  A.  B.,  do  solemnly  swear,  or  affirm,  as  the  case  may 
be,  that,  as  a  member  of  this  General  Congress,  I  will  sup- 
port the  Constitution  of  the  Republic,  and  that  I  will  not 
propose  or  assent  to  any  bill,  vote  or  resolution  which  shall 
appear  to  me  injurious  to  the  people." 

Sec.  3.  Every  person  who  shall  be  chosen  or  appointed 
to  any  office  of  trust  or  profit  shall,  before  entering  on  the 
duties  thereof,  take  an  oath  to  support  the  Constitution  of 
the  Republic,  and  also  an  oath  of  office. 

ARTICLE    VI. 

Section  1.  No  person  shall  be  eligible  to  the  office  of 
President  who  shall  not  have  attained  the  age  of  thirty-five 
years,  shall  be  a  citizen  of  the  Republic  at  the  time  of  the 
Constitution,  or  an  inhabitant  of  this  Republic  at  least  three 
years  immediately  preceding  his  election. 

Sec.  2.  The  President  shall  enter  on  the  duties  of  his 
office  on  the  second  Monday  in  December  next  succeeding 
his  election,  and  shall  remain  in  office  until  his  successor 
shall  be  duly  qualitied. 

Sec.  3.  The  President  shall,  at  stated  times,  receive  a 
compensation  for  his  services,  which  shall  not  be  increased 
or  diminished  durins:  his  continuance  in  office;  and  before 
entering  upon  the  duties  of  his  office,  he  shall  take  and  sub- 
scribe the  following  oath  or  affirmation:  — 

"I,  A.  B.,  President  of  the  Republic  of  Texas,  do  sol- 
emnly swear,   or  affirm,  as  the  case   may  be,  that  I  will 


CONSTITUTION   OF   THE   TEXAN   REPUBLIC.  589 

faithfully  execute  the  duties  of  my  office,  and  to  the  best 
of  my  abilities  preserve,  protect  and  defend  the  Constitu- 
tion of  the  Republic." 

Sec.  4.  He  shall  be  commander-in-chief  of  the  army  and 
navy  of  the  Republic,  and  the  militia  thereof;  but  he  shall 
not  command  in  person,  without  the  authority  of  a  resolu- 
tion of  Congress.  He  shall  have  power  to  remit  fines  and 
forfeitures,  and  to  grant  reprieves  and  pardons,  except  in 
cases  of  impeachment. 

Sec.  5.  He  shall,  with  the  advice  and  consent  of  two- 
thirds  of  the  Senate,  make  treaties  ;  and,  with  the  consent 
of  the  Senate,  appoint  ministers  and  consuls,  and  all  officers 
whose  offices  are  established  by  the  Constitution,  not  here- 
in otherwise  provided  for. 

Sec.  6.  The  President  shall  have  power  to  fill  all  vacan- 
cies that  may  happen  during  the  recess  of  the  Senate ;  but  he 
shall  report  the  same  to  the  Senate  within  ten  days  after  the 
next  Congress  shall  convene;  and  should  the  Senate  reject 
the  same,  the  President  shall  not  re-nominate  the  same  in- 
dividual to  the  same  office. 

Sec.  7.  He  shall,  from  time  to  time,  give  Congress,  in- 
formation on  the  state  of  the  Republic,  and  recommend  for 
their  consideration  such  measures  as  he  may  deem  necessary. 
He  may,  upon  extraordinary  occasions,  convene  both 
houses  or  either  of  them.  In  the  event  of  a  disagreement 
as  to  the  time  of  adjournment,  he  may  adjourn  them  to 
such  time  as  he  may  think  proper.  He  shall  receive  all 
foreign  ministers.  He  shall  see  that  the  laws  are  faithfully 
executed,  and  shall  commission  all  the  officers  of  the  Re- 
public. 

Sec.  8.  There  shall  be  a  seal  of  the  Republic,  which  shall 
be  kept  by  the  President,  and  used  by  him  officially  ;  it 
shall  be  called  the  great  seal  of  the  Republic  of  Texas. 

Sec.  9.  All  grants  and  commissions  shall  be  in  the  name 
and  by  the  authority  of  the  Republic  of  Texas,  shall  be 
sealed  with  the  great  seal,  and  signed  by  the  President. 

Sec.  10.  The  President  shall  have  power,  by  and  with 
the  advice  and  consent  of  the  Senate,  to  appoint  a  Secretary 


590  BENCH  AND  BAR  OF  TEXAS, 

of  State,  and  such  other  heads  of  executive  departments  as 
may  be  established  by  law,  who  shall  remain  in  office  during 
the  term  of  service  of  the  President,  unless  sooner  removed 
by  the  President,  with  the  advice  and  consent  of  the  Senate. 

Sec.  11.  Every  citizen  of  the  Republic  who  has  attained 
the  age  of  twenty-one  years,  and  shall  have  resided  six 
months  within  the  district  or  county  where  the  election  is 
held,  shall  be  entitled  to  vote  for  members  of  the  General 
Congress. 

Sec.  12.  All  elections  shall  be  by  ballot,  unless  Congress 
shall  otherwise  direct. 

Sec.  13.  All  elections  by  joint  vote  of  both  Houses  of 
Congress  shall  be  viva  voce,  shall  be  entered  on  the  journals, 
and  a  majority  of  the  votes  shall  be  necessary  to  a  choice. 

Sec.  14.  A  Vice-President  shall  be  chosen  at  every  elec- 
tion for  President  in  the  same  manner,  continue  in  office 
for  the  same  time,  and  shall  possess  the  same  qualifications 
as  the  President.  In  voting  for  President  and  Vice- 
President,  the  electors  shall  distinguish  for  whom  the}''  vote 
as  President,  and  for  whom  as  Vice-President. 

Sec.  15.  In  cases  of  impeachment,  removal  from  office, 
death,  resignation,  or  absence  of  the  President  from  the 
Republic,  the  Vice-President  shall  exercise  the  powers  and 
discharo;e  the  duties  of  the  President  until  a  successor  be 
duly  qualified,  or  until  the  President,  who  may  be  absent 
or  impeached,  shall  return  or  be  acquitted. 

Sec.  16.  The  President,  Vice-President,  and  all  civil  offi- 
cers of  the  Republic,  shall  be  removable  from  office  by  im- 
peachment for,  and  on  conviction  of,  treason,  bribery,  and 
other  high  crimes  and  misdemeanors. 

SCHEDULE. 

Section  1.  That  no  inconvenience  may  arise  from  the 
adoption  of  this  Constitution,  it  is  declared  by  this  convention 
that  all  laws  now  in  force  in  Texas,  and  not  inconsistent 
with  this  Constitution,  shall  remain  in  full  force  until  de- 
clared void,  repealed,  altered,  or  expire  by  their  own  limi- 
tation. 


CONSTITUTION  OF  THE  TEXAN  REPUBLIC.       591 

Sec.  2.  All  tines,  penalties,  forfeitures,  and  eschejits, 
which  have  accrued  to  Coahuila  and  Texas,  or  Texas,  shall 
accrue  to  this  Republic. 

Sec.  3.  Every  male  citizen  who  is,  by  this  Constitution* 
a  citizen,  and  shall  be  otherwise  qualified,  shall  be  entitled 
to  hold  any  office  or  place  of  honor,  trust,  or  profit  under 
the  Republic;  anything  in  this  Constitution  to  the  con- 
trary notwithstanding. 

Sec.  4.  The  first  President  and  Vice-President  that  shall 
be  appointed  after  the  adoption  of  this  Constitution  shall 
be  chosen  by  this  convention,  and  shall  immediately  enter  on 
the  discharge  of  their  offices,  and  shall  hold  said  offices  until 
their  successors  be  elected  and  qualified,  as  prescribed  in 
this  Constitution;  and  shall  have  the  same  qualifications, 
be  invested  with  the  same  powers,  and  perform  the  same 
duties  which  are  required  and  conferred  on  the  executive 
head  of  the  Republic  by  this  Constitution. 

Sec.  5.  The  President  shall  issue  writs  of  election  directed 
to  the  officers  authorized  to  hold  elections  of  the  several 
counties,  requiring  them  to  cause  an  election  to  be  held  for 
President,  Vice-president,  Representatives  and  Senators  to 
Congress,  at  the  time  and  in  the  mode  prescribed  by  this  Con- 
stitution, which  elections  shall  be  conducted  in  the  manner 
that  elections  have  been  heretofore  conducted.  The  Presi- 
dent, Vice-President,  and  members  of  Congress,  when  duly 
elected,  shall  continue  to  discharge  the  duties  of  their  respec- 
tive offices  for  the  time  and  in  the  manner  prescribed  by 
this  Constitution  until  their  successors  be  duly  qualified. 

Sec.  6.  Until  the  first  enumeration  shall  be  made,  aS 
directed  by  this  Constitution,  the  precinct  of  Austin  shall 
be  entitled  to  one  representative;  the  precinct  of  Brazoria 
to  two  representatives  ;  the  precinct  of  Bexar,  two  represen- 
tatives ;  the  precinct  of  Colorado,  one  representative  ;  Sa- 
bine, one;  Gonzales,  one;  Goliad,  one;  Harrisburg,  one; 
Jasper,  one ;  Jefferson,  one ;  Liberty,  one ;  Matagorda, 
one;  Mina,  two;  Nacogdoches,  two;  Red  River,  three; 
Victoria,  one  ;  San  Augustine,  two  ;  Shelby,  two  ;  Refugio, 
one;  San  Patricio,  one:  Washington,  two;  Milam,  one; 
and  Jackson,  one  representative 


592  BENCH  AND  BAR  OF  TEXAS. 

Sec.  7.  Until  the  first  enumeration  shall  be  made,  as 
described  by  this  Constitution,  the  senatorial  districts  shall 
be  composed  of  the  following  precincts:  Bexar  shall  be  en- 
titled to  one  Senator ;  San  Patricio,  Kef  ugio  and  Goliad, 
one;  Brazoria,  one;  Mina  and  Gonzales,  one;  Nacog- 
doches, one;  Red  River,  one;  Shelby  and  Sabine,  one; 
Washington,  one  ;  Matagorda,  Jackson  and  Victoria,  one  ; 
Austin  and  Colorado,  one;  San  Augustine,  one;  Milam, 
one  ;  Jasper  and  Jefferson,  one ;  and  Liberty  and  Harris- 
burg,  one  Senator. 

Sec.  8.  All  judges,  sheriffs,  commissioners,  and  other 
civil  officers,  shall  remain  in  office,  and  in  the  discharge  of 
the  powers  and  duties  of  their  respective  offices,  until  there 
shall  be  others  appointed  or  elected  under  the  Constitution. 

GENERAL   PROVISIONS. 

Section  1.  Laws  shall  be  made  to  exclude  from  office, 
from  the  right  of  suffrage,  and  from  serving  on  juries,  those 
who  shall  hereafter  be  convicted  of  bribery,  perjury,  or 
other  high  crimes  and  misdemeanors. 

Sec.  2.  Returns  of  all  elections  for  officers  who  are  to  be 
commissioned  by  the  President  shall  be  made  to  the  Secre- 
tary of  State  of  this  Republic. 

Sec  3.  The  President  and  heads  of  departments  shall 
keep  their  offices  at  the  seat  of  government,  unless  removea 
by  permission  of  Congress,  or  unless  in  cases  of  emergency 
in  time  of  war  the  public  interest  may  require  their 
removal. 

Sec.  4.  The  President  shall  make  use  of  his  private  seal 
until  a  seal  of  the  Republic  shall  be  provided. 

Sec.  5.  It  shall  be  the  duty  of  Congress,  as  soon  as  cir- 
cumstances will  permit,  to  provide  by  law  a  general  system 
of  education. 

Sec.  6.  All  free  white  persons  who  shall  emigrate  to  this 
Republic,  and  who  shall,  after  a  residence  of  six  months, 
make  oath  before  some  competent  authority  that  he  intends 
to  reside  permanently  in  the  same,  and  shall  swear  to  sup- 
port this  Constitution,  and  that  he  will  bear  true  allegiance 


CONSTITUTION    OF    THE    TEXAN    REPUBLIC.  593 

to  the  Republic  of  Texas,  shall  be  entitled  to  all  the  priv- 
ileges of  citizenship. 

Sec.  7.  So  soon  as  convenience  will  permit,  there  shall 
be  a  penal  code  formed,  on  principles  of  reformation,  and 
not  of  vindictive  justice;  and  the  civil  and  criminal  laws 
shall  be  revised,  digested,  and  arranged  under  different 
heads  ;  and  all  laws  relating  to  land  titles  shall  be  trans- 
lated, revised,  and  promulgated. 

Sec.  8.  All  persons  who  shall  leave  the  country  for  the 
purpose  of  evading  a  participation  in  the  present  struggle, 
or  shall  refuse  to  participate  in  it,  or  shall  give  aid  or  as- 
sistance to  the  present  enemy,  shall  forfeit  all  rights  of 
citizenship  and  such  lands  as  they  may  hold  in  the  Republic, 

Sec.  9.  All  persons  of  color  wdio  were  slaves  for  life 
previous  to  their  emigration  to  Texas,  and  who  are  now 
held  in  bondage,  shall  remain  in  the  like  state  of  servitude; 
provided,  the  said  slave  shall  be  bona  fide  property  of  the 
person  so  holding  said  slave  as  aforesaid.  Congress  shall 
pass  no  laws  to  prohibit  emigrants  from  bringing  their 
slaves  into  the  Republic  with  them,  and  holding  them  by 
the  same  tenure  by  which  said  slaves  were  held  in  the  United 
Stat  es  ;  nor  shall  Congress  have  power  to  emancipate  slaves ; 
nor  shall  any  slaveholder  be  allowed  to  emancipate  his  or 
her  slave  or  slaves  without  the  consent  of  Congress,  unless 
he  or  she  shall  send  his  or  her  slaves  without  the  limits  of 
the  Republic.  No  free  persons  of  African  descent,  either 
in  whole  or  in  part,  shall  be  permitted  to  reside  permanently 
in  the  Republic,  without  the  consent  of  Congress  ;  and  the 
importation  or  admission  of  Africans  or  negroes  into  this 
Republic,  excepting  the  United  States  of  America,  is  for- 
ever prohibited,  and  declared  to  be  piracy. 

Sec.  10.  All  persons,  Africans,  the  descendants  of  Afri- 
cans, and  Indians  excepted,  who  were  residing  in  Texas  on 
the  day  of  the  Declaration  of  Independence,  shall  be  con- 
sidered citizens  of  the  Republic,  and  entitled  to  all  the 
privileges  of  such.  All  citizens  now  living  in  Texas,  who 
have  not  received  their  portion  of  land,  in  like  manner 
colonists,  shall  be  entitled  to  their  land  in  the  followinsr 
projxtrtion  and  manner:  Every  head  of  a  family  shall  be 
38 


594  BENCH    AND    BAR. OF    TEXAS. 

entitled  to  one  league  and  labor  of  land  ;  and  every  single 
man  of  the  age  of  seventeen  and  upwards,  shall  be  entitled 
to  the  third  part  of  one  league  of  land.  All  citizens  who 
may  have,  previously  to  the  adoption  of  this  Constitution,, 
received  their  league  of  land  as  heads  of  i'amilies,  and  their 
quarter  of  a  league  of  land  as  single  persons,  shall  receive 
such  additional  quantity  as  will  make  the  quantity  of  land 
received  by  them  equal  to  one  league  and  labor,  and  one- 
third  of  a  league,  unless  by  bargain,  sale,  or  exchange,  they 
have  transferred  or  may  henceforth  transfer  their  right  to 
said  land,  or  a  portion  thereof,  to  some  other  citizen  of  the 
Republic;  and  in  such  case  the  person  to  whom  such  right 
shall  have  been  transferred,  shall  be  entitled  to  the  same,  as 
fully  and  amply  as  the  person  making  the  transfer  might  or 
could  have  been.  No  alien  shall  hold  laud  in  Texas,  ex- 
cept by  titles  emanating  directly  from  the  government  of 
this  Republic.  But  if  any  citizen  of  this  Republic  should 
die  intestate  or  otherwise,  his  children  or  heirs  shall  inherit 
his  estate,  and  aliens  shall  have  a  reasonable  time  to  take 
possession  of,  and  dispose  of  the  same,  in  a  manner  here- 
after to  be  pointed  out  bylaw.  Orphan  children,  whose 
parents  were  entitled  to  land  under  the  colonization  law  of 
Mexico,  and  who  now  reside  in  the  Republic,  shall  be  en- 
titled to  all  the  rights  of  which  their  parents  were  possessed 
at  the  time  of  their  death.  The  citizens  of  the  Republic 
shall  not  be  compelled  to  reside  on  the  land,  but  shall  have 
their  lines  plainly  marked. 

All  orders  of  survey  legally  obtained  by  any  citizen  of 
the  republic,  from  any  legally  authorized  commissioner,, 
prior  to  the  act  of  the  late  consultation  closing  the  land 
offices,  shall  be  valid.  In  all  cases,  the  actual  settler  and 
occupant  of  the  soil  shall  be  entitled,  in  locating  his  land, 
to  include  his  improvements  in  preference  to  all  other 
claims,  not  acquired  previous  to  his  settlement,  according 
to  the  law  and  this  Constitution;  provided  that  nothing^ 
herein  contained  shall  i)rejudice  the  rights  of  any  citizen 
from  whom  a  settler  may  hold  land  by  rent  or  lease. 

And  whereas  the  protection  of  the  public  domain  from 
unjust  and  fraudulent  claims  and  quieting  the  people  in  the 


CON.sTITUTION    OF    THE    TEXAN    KEPUBLIC.  595 

enjoyment  of  their  lands,  is  one  of  the  great  duties  of  this 
convention:  and  whereas  the  Legislature  of  Coahuila  and 
Texas  having  passed  an  act  in  the  year  eighteen  hundred 
and  thirty-four,  in  behalf  of  General  John  T.  Mason,  of 
New  York,  and  another  on  the  fourteenth  day  of  March, 
eighteen  hundred  and  thifty-five,  under  which  the  enor- 
mous amount  of  eleven  hundred  leagues  of  land  has  been 
claimed  by  sundry  individuals,  some  of  whom  reside  in 
foreign  countries,  and  are  not  citizens  of  the  Republic; 
which  said  acts  are  contrary  to  articles  fourth,  twelfth, 
and  fifteenth  of  the  laws  of  eighteen  hundred  and  twenty- 
four,  of  the  General  Congress  of  Mexico;  and  one  of  said 
acts,  for  that  cause  has,  by  said  General  Congress  of  Mex- 
ico, been  declared  null  and  void.  It  is  hereby  declared 
that  the  said  act  of  eighteen  hundred  and  thirty-four,  in 
favor  of  John  T.  Mason,  and  of  the  fourteenth  of  March, 
eighteen  hundred  and  thirty-five,  of  the  said  Legislature, 
of  Coahuila  and  Texas,  and  each  and  every  grant  founded 
thereon,  is,  and  was  from  the  beginning,  null  and  void  ; 
and  all  surveys  made  under  pretense  of  authority  derived 
from  said  acts,  are  hereby  declared  to  be  null  and  void  ; 
and  all  eleven  league  claims,  located  within  twenty  leagues 
of  the  boundary  line  between  Texas  and  the  United  States 
of  America;  which  have  been  located  contrary  to  the  laws 
of  Mexico,  are  hereby  declared  to  be  null  and  void  ;  and 
whereas  many  surveys  and  titles  to  land  have  been  made 
whilst  most  of  the  people  of  Texas  were  absent  from  home, 
serving  in  the  campaign  against  Bexar,  it  is  here  declared 
that  all  the  surveys  and  locations  of  land  made  since  the 
act  of  the  late  consultation  closing  the  land  ofiices,  and  all 
titles  to  land  made  since  that  time,  are  and  shall  be  null 
and  void. 

And  whereas,  the  present  unsettled  state  of  the  country 
and  the  general  welfare  of  the  people  demand  that  the 
operations  of  the  land  office,  and  the  whole  land  system 
shall  be  suspended  until  persons  serving  in  the  army  can 
have  a  fair  and  equal  chance  with  those  remaining  at  home 
to  select  and  locate  their  lands,  it  is  hereby  declared,  that 
no  survey    or  title  which   may  hereafter  be  made  shall  be 


596  BENCH  AND  BAR  OF  TEXAS. 

valid,  unless  such  survey  or  title  shall  be  authorized  by  this 
convention,  or  some  future  Congress  of  the  Kepublic. 
And  with  a  view  to  the  simplification  of  the  land  system, 
and  the  protection  of  the  people  and  the  government  from 
litigation  and  fraud,  a  general  land  office  shall  be  estab- 
lished, where  all  the  land-tillers  of  the  Republic  shall  be 
registered  ;  and  the  whole  territory  of  the  Republic  shall  be 
sectionized  in  a  manner  hereafter  to  be  prescribed  by  law, 
which  shall  enable  the  officers  of  the  government  or  any 
citizen  to  ascertain  with  certainty  the  lands  that  are  vacant, 
and  those  lands  which  may  be  covered  by  valid  titles. 

Sec.  11.  Any  amendment  or  amendments  to  this  Consti- 
tution maybe  proposed  in  the  House  of  Representatives  or 
Senate,  and  if  the  same  shall  be  agreed  to  by  a  majority  of 
the  members  elected  to  each  of  the  two  Houses,  such  pro- 
posed amendment  or  amendments,  shall  be  entered  on  the 
journals,  with  the  yeas  and  nays  therein,  and  referred  to 
the  Congress  then  next  to  be  chosen,  and  shall  be  published 
for  three  months  previous  to  the  election ;  and  if  the  Con- 
gress next  chosen  as  aforesaid,  shall  pass  said  amendment 
or  amendments  by  a  vote  of  two-thirds  of  all  the  members 
elected  to  each  House,  then  it  shall  be  the  duty  of  sai  d 
Congress  to  submit  said  proposed  amendment  or  amend  - 
ments  to  the  people,  in  such  manner  and  at  such  times  as 
the  Congress  shall  prescribe  ;  and  if  the  people  shall  ap- 
prove and  ratify  such  amendment  or  amendments  by  a 
majority  of  the  electors  qualified  to  vote  for  members  of 
Congress  voting  thereon,  such  amendment  or  amendments 
shall  become  a  part  of  this  Constitution;  provided,  how- 
ever, that  no  amendment  or  amendments  be  referred  to  the 
people  oftener  than  once  in  three  years. 

DECLARATION    OF    RIGHTS. 

This  declaration  of  rights  is  declared  to  be  a  part  of  this 
Constitution,  and  shall  never  be  violated  under  any  pretext 
whatever.  And  in  order  to  guard  against  the  transgression 
of  the  high  powers  which  we  have  delegated,  we  declare  that 
everything  in  this  bill  of  rights  contained,  and  every  othor 
right  not  hereby  delegated,  is  reserved  to  the  people. 


CONSTITUTION    OF    THE    TEXAN    ItEl'LJBLIC.  597 

1st.  All  men,  when  they  form  a  social  compact,  have 
equal  rights,  and  no  man  or  set  of  men  are  entitled  to  exclu- 
sive public  privileges  or  indorsements  from  the  community. 

2d.  All  political  power  is  inherent  in  the  peoi)le,  and  all 
free  governments  are  founded  on  their  authority,  and  insti- 
tuted for  their  benefit;  and  they  have  at  all  times  an  ina- 
Menable  right  to  alter  their  government  in  such  a  manner  as 
they  may  think  proper. 

3d.  No  preference  shall  be  given  by  law  to  any  religious 
denomination  or  mode  of  worship  over  another,  but  every 
person  shall  be  permitted  to  worship  God  according  to  the 
dictates  of  his  own  conscience. 

4th.  Every  citizen  shall  be  at  liberty  to  speak,  write  or 
publish  his  opinion  on  any  subject,  being  responsible  for 
the  abuse  of  that  privilege.  No  law  shall  ever  be  passed  to 
curtail  the  liberty  of  speech  or  of  the  press;  and  in  all 
prosecutions  for  libel,  the  truth  may  be  given  in  evidence, 
and  the  jury  shall  have  the  right  to  determine  the  law  and 
act  under  the  direction  of  the  court. 

5th.  The  people  shall  be  secure  in  their  persons,  houses, 
papers  and  possessions,  from  all  unreasonable  searches  or 
seizures  and  no  warrant  shall  issue  to  search  any  place  or 
seize  any  person  or  thing,  without  describing  the  place  to 
be  searched  or  the  person  or  thing  to  be  seized,  without 
probable  cause,  supported  by  oath  or  affirmation. 

6th.  In  all  criminal  prosecutions,  the  accused  shall  have 
the  right  of  being  heard,  by  himself,  or  counsel,  or  both; 
he  shall  have  the  right  to  denounce  the  nature  and  cause  of 
the  accusation,  shall  be  confronted  with  the  witnesses  against 
him,  and  have  compulsory  process  for  obtaining  witnesses 
in  his  favor.  And  in  all  prosecutions  by  presentment  or 
indictment,  he  shall  have  the  right  to  a  speedy  and  public 
trial  by  an  impartial  jury  ;  he  shall  not  be  compelled  to  give 
evidence  against  himself,  or  be  deprived  of  life,  liberty  or 
property,  but  by  due  course  of  law.  And  no  freeman  shall 
be  holden  to  answer  for  any  criminal  charge,  but  on  present- 
ment or  indictment  by  a  grand  jury,  except  in  the  land  and 
naval  forces,  or  in  the  militia  when  in  actual  service  in  time 
of  war  or  public  danger,  or  in  cases  of   impeachment. 


598 


BENCH    AND    BAR    OF    TKXAS. 


7th.  No  citizen  shall  be  deprived  of  privileges,  outlawed, 
exiled,  or  in  any  manner  disfranchised,  exceptby  due  course 
of  the  law  of  the  land. 

8th.  No  title  of  nobility,  hereditary  privileges  or  honors, 
shall  ever  be  granted  or  conferred  in  this  republic.  No 
person  holding  any  office  of  profit  or  trust  shall,  without  the 
consent  of  Congress,  receive  from  any  foreign  State  any 
present,  office,  or  emolument  of  any  kind. 

9th.  No  person,  for  the  same  offense,  shall  be  twice  put 
in  jeopardy  of  life  or  limb.  And  the  right  of  trial  by  jury 
shall  remain  inviolate. 

10th.  All  persons  shall  be  bailable  by  sufficient  security, 
unless  for  capital  crimes,  when  the  proof  is  evident  or  pre- 
sumption strong,  and  the  privilege  of  the  writ  of  habeas 
corpus  shall  not  be  suspended,  except  in  cases  of  rebel- 
lion or  invasion,  when  the  public  safety  may  require  it. 

11th.  Excessive  bail  shall  not  be  required,  nor  exces- 
sive fines  imposed,  or  cruel  or  unusual  punishments  inflicted. 
All  courts  shall  be  open,  and  every  man  for  any  injury  done 
him  in  his  lands,  goods,  person,  or  reputation,  shall  have 
remedy  by  due  course  of  law. 

12th.  No  person  shall  be  imprisoned  for  debt  in  conse- 
quence of  inability  to  pay. 

13th.  No  person's  particular  services  shall  be  demanded, 
nor  property  taken  or  applied  to  public  use,  unless  by  the 
consent  of  himself  or  his  representative,  without  just  com- 
pensation being  made  therefor  according  to  law. 

14th.  Every  citizen  shall  have  the  right  to  bear  arms  in 
defence  of  himself  and  the  Eepublic.  The  military  shall 
at  all  times  and  in  all  cases  be  subordinate  to  the  civil  power. 
15th.  The  sure  and  certain  defense  of  a  free  people  is  a 
well  regulated  militia  ;  and  it  shall  be  the  duty  of  the  Leg- 
islature to  enact  such  laws  as  may  be  necessary  to  the  mil- 
Hia  of  this  Eepublic. 

16th.  Treason  against  this  Eepublic  shall  consist  only 
in  bringing  war  against  it,  or  adhering  to  its  enemies,  giv- 
ing them  aid  and  support.  No  retrospective  or  ex  posi 
facto  law,  or  laws  imparing  the  obligations  of  contracts 
shall  be  made. 


CONSTITUTION    OF    THE    TEXAN    KEPUBLIC. 


599 


17th.  Perpetuities  or  monopolies  jire  contrary  to  tlie 
sreniiis  of  a  free  government  and  !?hall  not  be  allowed;  nor 
shall  any  law  of  primogeniture  or  entailment  ever  be  in 
force  in  this  Republic. 


JMRMBERS  OP  THE    CONVENTION    WHICH    ADOPTED  THE  CONSTI- 
TUTION OF  THE  TEXAN  REPUBLIC. 


Name. 
Ei chard  Ellis, 
C  B.  Stewart, 
John  S.  Roberts, 
James  Collingsworth, 
Robert  Hamilton, 
Edwin  Waller, 
Collin  McKinney, 
A.  Brigham, 
A.  H.  Latimer, 
John  S.  D.  Byrom, 
James  Power, 
Francis  Ruis, 
Sam  Houston, 
J.  Antonio  Navarro, 
Edwin  Conrad, 
William  D.  Lacy, 
Martin  Palmer, 
William  Menifee, 
James  Gains, 
John  Fisher, 
William  Clark,  Jr., 
Matthew  Caldwell, 
Sydney  F.  Pennington, 
AVilliam  Motley, 
Samuel  P.  Carson, 
Lorenzo  D.  Zavala, 
*rhomas  J.  Rusk, 
Stephen  W.  Blunt, 

Charles 


Name. 
George  W.  Smith, 
William  C.  Crawford, 
Stephen  H.  Everett, 
John  Turner, 
Elijah  Stepp, 
Benjamin  B.  Goodrich, 
Claiborne  West, 
James  G.  Swisher, 
William  B.  Leates, 
George  Wm.  Barnett, 
M.  B.  Menard, 
Jesse  Grimes, 
A.  B.  Hardin, 
E.  O.  Legrand, 
John  W.  Bunton, 
David  Thomas, 
Thomas  J.   Gazley, 
S.  Rhodes  Fisher, 
R.  M.  Coleman, 
John  W.  Boraer, 
Sterling  C.  Robertson, 
J.  B.  Woods, 
George  C.  Childress, 
A.   Briscoe, 
Baily  Hardeman, 
Thomas  Barnett, 
Robert  Potter, 
Jesse  B.  Badgett, 
Taylor. 


600  BENCH  AND  BAR  OF  TEXAS. 


ANNEXATION    OF   TEXAS. 


CONDITIONAL    CONSENT    OF    THE    CONGRESS    OF    THE     UNITED 

STATES. 

Resolved^  by  the  Congress  of  the  United  States  of  America 
in  Congress  assembled. 

1.  That  Congress  doth  consent  that  the  territory  properly 
included  within,  and  rightly  belonging  to  the  Kepublic  of 
Texas,  may  be  erected  into  a  new  State,  to  be  called  the 
State  of  Texas,  with  a  republican  form  of  government,  to 
be  adopted  by  the  people  of  said  Republic,  by  deputies  in 
convention  assembled,  with  the  consent  of  the  existino;  gov- 
ernment,  in  order  that  the  same  may  be  admitted  as  one  of 
the  States  of  the  Union. 

2.  And  be  it  further  resolved.  That  the  foregoing  consent 
of  Congress  is  given  upon  the  following  conditions,  and 
with  the  following;  guarantees  to  wit :  First.  Said  State 
to  be  formed,  subject  to  the  adjustment  by  this  government 
of  all  questions  of  boundary  that  may  arise  with  other 
governments  ;  and  the  Constitution  thereof,  with  the  proper 
evidence  of  its  adoption  by  the  people  of  said  Republic  of 
Texas,  shall  be  transmitted  to  the  President  of  the  United 
States,  to  be  laid  before  Congress  for  its  final  action,  on 
or  before  the  first  day  of  January,  one  thousand  eight  hun- 
dred and  forty-six.  Second.  Said  State,  when  admitted 
into  the  Union,  after  ceding  to  the  United  States  all  public 
edifices,  fortifications,  barracks,  ports  and  harbors,  navy 
and  navy-yards,  docks,  magazines,  arms,  armaments,  and 
all  other  property  and  means  pertaining  to  the  public  de- 
fense belonging  to  the  said  Republic  of  Texas,  shall  retain 
all  the  public  funds,  debts,  taxes,  and  dues  of  every  kind, 
which  may  belong  to,  or  be  due  and  owing  to  said  Republic; 


ANNEXATION    OF   TEXAS.  601 

and  shall  also  retain  all  the  vacant  and  unappropriated 
lands  lying  within  its  limits,  to  be  applied  to  the  payment 
of  the  debts  and  liabilities  of  said  Republic  of  Texas,  and 
the  residue  of  said  lands,  after  discharging  said  debts  and 
liabilities,  to  be  disposed  of  as  said  State  may  direct;  but 
in  no  event  are  said  debts  and  liabilities  to  become  a  charge 
upon  the  government  of  the  United  States.  Third.  New 
States,  of  convenient  size,  not  exceeding  four  in  number, 
in  addition  to  said  State  of  Texas,  and  having  sufficient 
population,  may,  hereafter,  by  the  consent  of  said  State, 
be  formed  out  of  the  territory  thereof,  which  shall  be  en- 
titled to  admission  under  the  provisions  of  the  Federal  Con- 
stitution. And  such  States  as  may  be  formed  out  of  that 
portion  of  said  territory  lying  south  of  thirty-six  degrees 
thirty  minutes  north  latitude,  commonly  known  as  the  Mis- 
souri Compromise  Line,  shall  be  admitted  into  the  Union, 
with  or  without  slavery,  as  the  people  of  each  State  asking 
admission  may  desire.  And  in  such  State  or  States  as 
shall  be  formed  out  of  said  territory  north  of  said  Missouri 
Compromise  Line,  slavery,  or  involuntary  servitude  (ex- 
cept tor  crime),  shall  be  prohibited. 

3.  And  be  it  further  resolved,  That  if  the  President  of 
the  United  States  shall,  in  his  judgment  and  discretion, 
deem  it  most  advisable,  instead  of  proceeding  to  submit  the 
'foregoing  resolution  to  the  Republic  of  Texas,  as  an  over- 
ture on  the  part  of  the  United  States  for  admission,  to 
negotiate  with  that  Republic  ;  then 

Be  it  resolved,  That  a  State,  to  be  formed  out  of  the 
present  Republic  of  Texas,  with  suitable  extent  and  bound- 
aries, and  with  two  Representatives  in  Congress,  until  the 
next  apportionment  of  representation,  shall  be  admitted  into 
the  Union,  by  virtue  of  this  act,  on  an  equal  footing  with 
the  existing  States,  as  soon  as  the  terms  and  conditions  of 
such  admission,  and  the  cession  of  the  remaining  Texan 
territory  to  the  United  States  shall  be  agreed  upon  by  the 
governments  of  Texas  and  the  United  States.  And  that 
the  sum  of  one  hundred  thousand  dollars  be,  and  the  same 
is  hereby,  a[)[)ropriated  to  defray  the  expenses  of  missions 
and  negotiations,  to  agree  upon  the  terms  of  said  admission 


(302  BENCH    AND    BAR    OF    TEXAS. 

and  cession,  either  by  treaty  to  be  submitted  to  the  Senate, 
or  by  articles  to  be  submitted  to  the  two  Houses  of  Con- 
gress, as  the   President  may  direct. 
Approved,  March  1,  1845. 


ACCEPTANCE    OF     THE     CONDITIONS    OF    ANNEXATION     BY    THE 
CONGRESS    OF    THE    REPUBLIC. 

Whereas,  The  government  of  the  United  States  hath 
proposed  the  following  terms,  guarantees,  and  conditions, 
on  which  the  people  and  territory  of  the  Republic  of  Texas 
may  be  erected  into  a  new  State,  to  be  called  the  State  of 
Texas,  and  admitted  as  one  of  the  States  of  the  American 
Union,  to  wit  (the  first  and  second  sections  of  the  forego- 
ing proposition); 

And,  Whereas,  by  said  terms,  the  consent  of  the  existing 
government  of  Texas  is  required,  therefore  :  — 

Section  1.  Be  it  resolved  hy  the  Senate  and  House  of 
Representatives  of  the  Republic  of  Texas  in  Congress  assem- 
bled, That  the  Government  of  Texas  doth  consent,  that  the 
people  and  territory  of  the  Republic  of  Texas  may  be  erected 
into  a  new  State,  to  be  called  the  State  of  Texas,  with  a 
republican  form  of  government,  to  be  adopted  by  the  peo- 
ple of  said  Republic,  by  deputies  in  convention  assembled, 
in  order  that  the  same  may  be  admitted  as  one  of  the  States 
of  the  American  Union ;  and  said  consent  is  given  on  the 
terms,  guarantees,  and  conditions  set  forth  in  the  preamble 
to  this  joint  resolution. 

Sec.  2.  Be  it  further  resolved.  That  the  proclamation  of 
the  President  of  the  Republic  of  Texas,  bearing  date  May 
fifth,  eighteen  hundred  and  forty-five,  and  the  election  of 
deputies  to  sit  in  convention  at  Austin,  on  the  fourth  day 
of  July  next,  for  the  adoption  of  a  Constitution  for  the 
State  of  Texas,  had  in  accordance  therewith,  hereby  receives 
the  consent  of  the  existing  government  of  Texas. 

Sec.  3.  Be  it  further  resolved.  That  the  President  of 
Texas  is  hereby  requested  immediately  to  furnish  the  Gov- 
ernment of  the  United  States,  through  their  accredited  min- 


ANNEXATION    OF    TEXAS.  603 

ister  near  this  government,  with  a  copy  of  this  joint 
resohition  ;  also  to  furnish  the  convention  to  assemble  at 
Austin,  on  the  fourth  of  July  next,  a  copy  of  the  same. 
And  the  same  shall  take  effect  from  and  after  its  passage. 
Approved,  June  23d,  1845. 


ASSENT    OF    THE    PEOPLE    OF    THE    REPUBLIC    IN    CONVENTION. 

W/tereas,  The  Congress  of  the  United  States  of  America 
has  passed  resolutions  providing  for  the  annexation  of 
Texas  to  that  Union,  which  resolutions  were  approved  by 
the  President  of  the  United  States  on  the  first  day  of  March, 
one  thousand  eight  hundred  and  forty- five  ;  and,  lohereas^ 
the  President  of  the  United  States  has  submitted  to  Texas 
the  first  and  second  sections  of  the  said  resolution  as  the 
basis  upon  which  Texas  may  be  admitted  as  one  of  the 
States  of  the  said  Union;  and,  whereas, the,  existing  govern- 
ment of  the  Republic  of  Texas  has  assented  to  the  proposals 
thus  made,  the  terms  and  conditions  of  which  are  as  fol- 
lows (quoting  the  first  and  second  sections  of  the  resolu- 
tion) : 

Now,  in  order  to  manifest  the  assent  of  the  people  of 
this  Republic  as  required  in  the  above  recited  portions  of 
the  said  resolution  ;  We,  the  deputies  of  the  people  of  Texas 
in  convention  assembled,  in  their  name,  and  by  their 
authority,  do  ordain  and  declare,  that  we  assent  to,  and 
accept  the  proposals,  conditions,  and  guarantees  contained 
in  the  first  and  second  sections  of  the  resolution  of  the 
Congress  of  the  United  States  aforesaid. 

Done  in  the  City  of  Austin,  Republic  of  Texas,  July  4, 
1845. 

Phil  M.  Cuny,  H.  G.  Runnels,  Robert  M.  Forbes,  Sam 
Lusk,  John  Caldwell,  Jose  Antonio  Navarro,  Geo.  Wm. 
Brown,  Gustavus  A.  Everts,  Lemuel  Dale  Evans,  J.  B. 
Miller,  R.  E.  B.  Baylor,  J.  S.  Mayficld,  R.  Bache,  James 
Love,  Wm.  L.  Hunter,  John  D.  Anderson,  Isaac  Parker, 
P.  A.  Lumpkin,  Francis  Moore,  Jr.,  Isaac  W.  Biashear, 
Alexander  McGowan,  Isaac  Van  Zandt,  S.  Holland,  Edward 


604  BENCH  AND  BAR  OF  TEXAS. 

Clark,  Geo.  W.  Smyth,  James  Armstrong,  John  M.  Lewis, 
James  Scott,  Archibald  McNeill,  A.  C.  Horton,  Israel 
Standefer,  Jos.  L.  Hogg,  Chas.  S.  Taylor,  David  Gage, 
Henry  J.  Jewett,  Conit  Armstrong,  James  Power,  Albert 
H.  Latimer,  Wm.  C.  Young,  J.  Pinckney  Henderson, 
Nicholas  H.  Darnell,  Emery  Rains,  A.  W.  O.  Hicks,  James 
M.  Burroughs,  H.  L.  Kinney,  Wm.  L.  Cazneau,  A.  S. 
Cunningham,  Abner  S.  Lipscomb,  John  Hemphill,  Van  R. 
Irion,  Volney  E.  Howard,  E.  H.  Tarrant,  Francis  M. 
White,  James  Davis,  George  T.  Wood,  G.  W.  Wright,  H. 
R.  Latimer,  W.  B.  Ochiltree,  Oliver  Jones,  B.  C.  Bagby, 
Chas.  Bellinger  Stewart. 

Attest :  James  H.  Raymond, 

Secretary  of  the  Convention, 


admission  of  TEXAS  INTO  THE  UNION DECEMBER  29,  1845. 

Whereas,  The  Congress  of  the  United  States,  by  a  joint 
resolution,  approved  March  the  first,  eighteen  hundred  and 
forty-five,  did  consent  that  the  territory  properly  included 
within  and  rightfully  belonging  to  the  Republic  of  Texas, 
might  be  erected  into  a  new  State,  to  be  called  the  State  of 
Texas,  with  a  republican  form  of  government,  to  be  adopted 
by  the  people  of  said  Republic,  by  deputies  in  convention 
assembled,  with  the  consent  of  the  existing  government, 
in  order  that  the  same  might  be  admitted  as  one  of  the 
States  of  the  Union  ;  which  consent  of  Congress  was  given 
upon  certain  conditions  specified  in  the  first  and  second  sec- 
tions of  said  joint  resolution  ; 

And  Whereas,  The  people  of  said  Republic  of  Texas, 
by  deputies  in  convention  assembled,  with  the  consent  of 
the  existing  government,  did  adopt  a  Constitution  and  erect 
a  new  State  with  a  republican  form  of  government,  and,  in 
the  name  of  the  people  of  Texas,  and  by  their  authority, 
did  ordain  and  declare  that  they  assented  to  and  accepted 
the  proposals,  conditions,  and  guarantees  contained  in  said 
first  and  second  sections  of  said  resolution  ; 

And  Whereas,  The  said   Constitution,  with  the  proper 


ANNEXATION    OF    TEXAS.  605 

evidence  of  its  adoption  by  the  people  of  the  Republic  of 
Texas,  has  been  transmitted  to  the  President  of  the  United 
States  and  laid  before  Congress,  in  conformity  to  the  pro- 
visions of  said  joint  resolution  ;  therefore, 

1.  Be  it  resolved  hy  the  Senate  and  House  of  Representa- 
iives  of  the  United  States  of  America  in  Congress  assem- 
bled. That  the  State  of  Texas  shall  be  one,  and  is  hereby 
declared  to  be  one,  of  the  United  States  of  America,  and 
admitted  into  the  Union  on  an  equal  footing  with  the  orio-- 
inal  States  in  all  respects  whatever. 

2.  And  be  it  further  resolved,  Tbat  until  the  Represen- 
tatives in  Congress  shall  be  apportioned  according  to  an 
actual  enumeration  of  the  inhabitants  of  the  United  States, 
the  State  of  Texas  shall  be  entitled  to  choose  two  Represen- 
tatives. 


CHAPTER    X. 


JUDICIAL   DATA. 

The  Constitution  of  the  Republic  of  Texas  required  the 
Supreme  Court  to  consist  of  a  chief  justice  and  associate 
judges;  the  district  judges  composed  the  associate  judges, 
a  majority  of  wliom,  with  the  chief  justice,  sitting  in  banc, 
constituted  the  Supreme  Court. 

Chief  Justices  of  the  Republic  —  James  Collinsworth, 
Johu  Birdsidl,  Thomas  J.  Rusk  and  John  Hemphill.  The 
first  two  did  not  hold  any  term  of  the  court. 

District  Judges  during  the  Republic — Shelby  Corzin^ 
Benjamin  C.  Franklin,  R.  M.  Williamson,  James  W.  Rob- 
inson, Edward  T.  Branch,  John  T.  Mills,  Ezekiel  W.  Cullen, 
Henry  W.  Fontaine,  John  Scott,  Anthony  B.  Shelby, 
William  J.  Jones,  John  Hemphill,  Richard  Scurry,  John  M. 
Hansford,  R.  E.  B.  Baylor,  Anderson  Hutchinson,  George 
W.  Terrill,  Thomas  Johnson,  Patrick  C.  Jack,  Richard 
Morris,  WilHamB.  Ochiltree,  William  E.  Jones,  M.  P. 
Norton,  John  B.  Jones,  R.  T.  Wheeler. 

Attorneys-General  of  the  Republic  —  David  Thomas, 
Peter  W^.  Grayson,  J.  Pickney  Henderson,  John  Birdsall, 
A.  S.  Thurston,  J.  C.  Watrous,  James  Webb,  F.  A.  Morris, 
George  W.  Terrill,  Ebenezer  Allen. 

JUDGES  OF  THE  SUPREME  COURT  OF  THE  STATE  OF  TEXAS. 

1 84(i  —  John  Hemphill,  chief  justice ;  Abner  S.  Lipscomb, 
Royal  T.  Wheeler,  associates.  Judge  Lipscomb  died  in 
in  1856,  and  was  succeeded  by  O.  M.  Roberts. 

1858  —  Royal  T.  Wheeler,  chief  justice.  Hemphill  suc- 
ceeded by  James  H.  Bell,  and  O.  M.  Roberts  by  George  F. 
Moore. 

(  006  ) 


JUDICIAL    DATA.  ()07 

1864  —  O.  M.  Roberts,  chief  justice,  succeeds  Wheeler, 
and  Bell  is  succeeded  by  Reuben  A.  Reeves. 

1866  —  George  F.  Moore,  chief  justice;  Richard  Cooke, 
S.  P.  Donley,  Asa  H.  Willie,  and  George  W.  Smith,  asso- 
ciates. These  were  all  removed  in  1867  as  impediments  to 
reconstruction,  and  the  following  were  appointed  by  mili- 
tary authority :  — 

1867  —  Amos  Morrill,  chief  justice;  Livingston  Lindsay, 
Albert  H.  Latimer,  Colbert  Cold  well  and  Andrew  J.  Ham- 
ilton, associates.  Moses  Walker  succeeded  Hamilton  in 
1869,  and  James  Denison  succeeded  Latimer  in  1870. 

1870  —  Under  the  Constitution  of  1869,  Lemuel  D. 
Evans,  chief  justice;  Moses  Walker  and  Wesley  Ogden, 
associates.  In  1873  Evans  was  succeeded  by  I.  D.  McAdoo, 
and  Ogden  was  made  presiding  judge. 

1874 — O.  M.  Roberts,  chief  justice  (reorganization  of 
the  court)  ;  Reuben  A.  Reeves,  Thomas  J.  Divine,  George 
F.  Moore,  William  P.  Ballinger,  associates.  Judge  Bal- 
linger  resigned  immediately,  and  was  succeeded  by  Peter 
W.  Gray,  who  also  resigned  in  a  few  months,  and  was 
succeeded  by  Robert  S.  Gould,  and,  in  1875,  John 
Ireland  was  elected  to  succeed  Divine  under  the  new 
Constitution. 

1876  —  O.  M.  Roberts,  chief  justice;  George  F.  Moore 
and  Robert  S.  Gould,  associates. 

1878  —  George  F.  Moore,  chief  justice;  Robert  S.  Gould 
and  Micajah  H.  Bonner,  associates. 

1881  —  Robert  S.  Gould,  chief  justice  ;  Micajah  H.  Bon- 
ner, John  W.  Stayton,  associates. 

1882-1885— Asa  H.  Willie,  chief  justice;  John  W. 
Stayton,  Charles  S.  West,  associates. 

JUDGES    OF   THE    COURT    OF   APPEALS. 

1876 — M.  D.  Ector,  presiding  judge;  C.  M.  Winkler, 
George  Clark,  associates. 

1879-1885  —  Jolin  P.  White,  presiding  judge;  James  M. 
Hurt,  Samuel  M.  Willson,  associates. 


608  BENCH    AND    BAR    OF    TEXAS. 


JUDGES    OF   THE    COURT    OF    COMMISSION    OF   APPEALS   WHICH 
WAS    ESTABLISHED  IN  1881  AND  RECREATED  IN   1883. 

1881  —  Richard  S.  Walker,  presiding  judge;  George 
Quinan,  A.  S.  Walker,  associates.  Quiiian  resigned  in 
1832,  and  was  succeeded  by  W.  S.  Delaney,  and  A.  S. 
Walker  by  A.  T.  Watts. 

1885 — Richard  S.  Walker,  presiding  Judge;  A.  T. 
Watts,  W.  S.  Delaney,  associates. 

ATTORNEYS-GENERAL  OF  THE  STATE. 

1846-1885— John  W.  Harris,  1846;  Andrew  J.  Hamil- 
ton, acting,  1849  ;  Ebenizer  Allen,  1851  ;  Thomas  J. 
Jenings,  1852;  James  Willie,  1856;  Malcolm  D.  Graham, 
1859  ;  George  Flournoy,  1860  ;  N.  G.  Shelly,  1862  r  B.  E. 
Turner,  1864;  WiUiam  M.  Walton,  1866;  William  Alexan- 
der, 1867  ;  Ezekiel  B.  Turner,  1868  ;  William  Alexander, 
1870;  George  Clark,  1874;  H.  H.  Boone,  1876;  G.  Mc- 
Cormick,  1878 ;  J.  H.  McLeary,  1880;  John  D.  Templeton, 
1882,  re-elected  in  1884. 


Alphabetical  List  of  Biographies. 


Allen,  Ebenezer 
Anderson,  J.  M. 
Ballinger,  W.  p. 
Battle,  N.  W.  . 
Baylor,  R.  E.  B. 
Bell,  J.  II. 
Bonner,  M.  H.  . 
Brewster,  H.  P. 
Clark,  George 
Coke,  Richard  . 
Dallam,  Jaivies  W. 
Delaney,  W.   S. 
Devine,  Thos.  J. 
Donley,  S   P.     . 
Ddval,  Thos.  H. 
EcTOu,  M.  D.     . 
Evans,  L.  D. 
Franklin,  Benjamin  C 

GOLDTHWAITE,  GeORGE 

Gould,  R.  S. 
Gray,  Peter  W. 
Hamilton,  A.  J. 
Hancock,  John 
Harris,  J.  W.    . 
Harrison,  Thos. 
Hartley,  O.  C. 
Hemphill,  John 
Henderson,  J.  P. 
Herndon,  W.  S. 
Herring,  M.  D. 
Howard,  Volney  E 
Hubbard,  R.  B. 
^URT,  J.  M. 
Hutchinson,  A. 
Ireland,  John  . 
30 


(COO) 


^ 


(510 


BENCH    AND    BAR    OF    TEXAS. 


Jack,  Wm,  H.    . 
Jack,  Thos.  McK. 
Jennings,  Thos.  H. 
Lipscomb,  A.  S. 
/sMooRE,  G.  F.     . 
MoKRiLL,  Amos 
Morris,  Richard 
Ochiltree,  W.  B. 
Oldham,  W.  S. 
Pease,  E.  M.     . 
Peeler,  A.  J.     . 
Reagan,  J.  H.    . 
Roberts,  O.  M. 
Rusk,  Thos.  J.  . 
Nayles,  John 
Scurry,  Richardson 
Sexton,  Frank  . 
Shelley,  N.  G.  . 
Shepard,  J.   E. 
Stayton,  J.  W. 
Stewart,  Charles 
Terrell,  A.  W. 
Throckmorton,  J.  W 
Turner,  E.  B.    . 
Todd,  W.  S. 
Waelder,  Jacob 
Walker,  R.  S.   . 
Walker,  A.  S.  . 
Walton,  Wm.  M. 
Watts,  A.  T. 
Waul,  Thos.  N. 
Webb,  James 
West,  C.  S.       . 
Wharton,  J.  A. 
Wheeler,  R.  T. 
White,  Alex.     . 
White,  J.  P. 
Williamson,  R.  M. 
Willie,  James  . 
Willie,  A.  H.    . 

WiLLSON,   S.    A. 

Winkler,  C.  M. 


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